IN THE OFFICE OF ADMINISTRATIVE HEARINGS MAGELLAN … · 9/19/2013 · 5 Roopali H. Desai, Esq. 2800 North Central Avenue 6 Suite 1200 Phoenix, Arizona 85004 7 602-224-0999 [email protected]

IN THE OFFICE OF ADMINISTRATIVE HEARINGS ) MAGELLAN HEALTH SERVICES OF ) ARIZONA, INC. and MAGELLAN ) COMPLETE CARE OF ARIZONA, INC., ) ) Appellants, ) ) vs. ) No. 13F-006-ADM ) ARIZONA DEPARTMENT OF HEALTH ) SERVICES, ) ) Respondent, ) ) and ) ) MERCY MARICOPA INTEGRATED CARE, ) ) and ) ) ARIZONA HEALTH CARE COST ) CONTAINMENT SYSTEM, ) ) Intervenors. ) ___________________________________) BEFORE: THE HONORABLE DIANE MIHALSKY, JUDGE REPORTER'S TRANSCRIPT OF PROCEEDINGS Volume 2 Pages 238 through 506 Phoenix, Arizona September 19, 2013 8:04 a.m. Prepared by: Meri Coash, RMR, CRR Certified Realtime Reporter (Copy) Certified Reporter #50327

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1 I N D E X 2 DR. MARY TEMM, DSc, MHSA 3 Direct Examination by Ms. Premeau 245 4 Cross-Examination by Ms. Desai 324 Cross-Examination by Mr. Honig 348 5 Cross-Examination by Mr. Johnston 357 Redirect Examination by Ms. Premeau 358 6 MARGERY AULT 7 Direct Examination by Ms. Manjencich 369 8 Cross-Examination by Mr. Ray 487 Redirect Examination by Ms. Manjencich 500 910 E X H I B I T S11 JOINT EXHIBITS NO. DESCRIPTION ID EVD12 4 Part Two (2) Solicitation Scope of 40013 Work Amended14 9 Part Five (5) Special Instructions to 279 Offerors Amended15 29 Evaluation Committee Member 48816 Confidentiality and COI Statements17 33 Evaluation Documentation 30218 40 Magellan Bid Protest 28419 MAGELLAN EXHIBITS20 NO. DESCRIPTION ID EVD21 52 MAG Mary Temm Resume 254 25522 296 Magellan's Proposal - Attachment 5 - 471 Redacted23 298 Magellan's Proposal - Attachment 6, 28324 Vol 1 - Redacted25

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1 MAGELLAN EXHIBITS NO. DESCRIPTION ID EVD 2 330 MMIC Proposal - Attachment 6 - Method 442 3 of Approach_Volume 6_MMIC~1[1] 4 397 Dr. Temm's Report (Unredacted) 276 5 434 RBHA v Provider Structure 20 6 7 ADHS EXHIBITS NO. DESCRIPTION ID EVD 8 11 Solicitation Amendment 1 487 488 910 MMIC EXHIBITS NO. DESCRIPTION ID EVD11 58 Temm Engagement Letter 273 2741213141516171819202122232425

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1 A P P E A R A N C E S 2 3 On Behalf of the Appellant Magellan Health Services of Arizona, Inc., and Magellan Complete Care of 4 Arizona, Inc.: RIDENOUR, HIENTON & LEWIS, PLLC 5 By: David G. Derickson, Esq. John P. Kaites, Esq. 6 Patricia A. Premeau, Esq. Zora Manjencich, Esq. 7 201 North Central Avenue Suite 3300 8 Phoenix, Arizona 85004 602-254-9900 9 [email protected] [email protected] [email protected] [email protected] On Behalf of the Respondent Arizona Department of Health Services:13 OFFICE OF THE ARIZONA ATTORNEY GENERAL By: Kevin D. Ray, Esq.14 Laura T. Flores, Esq. Gregory D. Honig, Esq.15 1275 West Washington Street Phoenix, Arizona 8500716 602-542-8238 [email protected] [email protected] [email protected] On Behalf of Arizona Health Care Cost Containment19 System: JOHNSTON LAW OFFICES, PLC20 By: Logan T. Johnston, III, Esq. 1402 East Mescal Street21 Phoenix, Arizona 85020 602-452-061522 [email protected]

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1 A P P E A R A N C E S (CONTINUED) 2 3 On Behalf of the Intervenor Mercy Maricopa Integrated Care: 4 COPPERSMITH SCHERMER & BROCKELMAN, PLC By: Andrew S. Gordon, Esq. 5 Roopali H. Desai, Esq. 2800 North Central Avenue 6 Suite 1200 Phoenix, Arizona 85004 7 602-224-0999 [email protected] 8 [email protected] 9 and10 SNELL & WILMER, LLP By: Brett W. Johnson, Esq.11 One Arizona Center 400 East Van Buren Street12 Suite 1900 Phoenix, Arizona 8500413 602-382-6000 [email protected] and15 PERKINS COIE, LLP16 By: Paul F. Eckstein, LLP 2901 North Central Avenue17 Suite 2000 Phoenix, Arizona 8501218 602-351-1800 [email protected] Also present: Mark Fisher, Meaghan Kramer, and Kym Derus2122232425

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1 TRANSCRIPT OF PROCEEDINGS 2 JUDGE MIHALSKY: We're on the record. It is 3 8:04 a.m. on September 19th, 2013. This is the second day 4 of the hearing in case number 13F-006-ADM, Magellan Health 5 Services of Arizona, Inc., and Magellan Complete Care of 6 Arizona, Inc., appellants, versus Arizona Department of 7 Health Services, respondent, and Mercy Maricopa Integrated 8 Care and Arizona Health Care Cost Containment System, 9 intervenors.10 My name is Diane Mihalsky. I'm the11 administrative law judge who is conducting the hearing in12 this matter. I will allow the attorneys to state their13 appearances. Starting on this side today.14 MR. GORDON: Andy Gordon, Roopali Desai,15 Brett Johnson and Paul Eckstein for MMIC.16 MR. KAITES: John Kaites, Your Honor, for17 Magellan Health Services and Magellan Complete Care, along18 with Patty Premeau, Zora Stevanovich Manjencich, as well19 as David Derickson.20 MS. PREMEAU: And Meaghan Kramer.21 MR. KAITES: And Meaghan Kramer.22 MR. RAY: Good morning, Judge. Kevin Ray,23 Laura Flores and Greg Honig on behalf of the Department of24 Health Services.25 MR. JOHNSTON: Logan Johnston for AHCCCS,

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1 Your Honor. 2 JUDGE MIHALSKY: Very good. I note there 3 are many observers present here and witnesses. 4 I do note on the record that I did receive 5 Magellan's response in opposition to MMIC's objection and 6 motion to quash subpoenas duces tecum to Meryl F. Price 7 and Sondra Stauffacher. I will rule on that motion soon. 8 And I also received Magellan's motion to 9 reconsider order limiting scope of evidence at hearing to10 contest the bid protest. As I stated yesterday, that --11 the other parties may respond to that motion within two12 days.13 MR. GORDON: Thank you, Your Honor. We14 will.15 JUDGE MIHALSKY: I will issue -- Two16 business days, of course. And I will issue an order on17 that as soon as I can.18 Are there any other preliminary matters that19 need to be addressed before we begin with Dr. Temm's20 testimony?21 MR. KAITES: No, Your Honor.22 MR. GORDON: No, Your Honor.23 JUDGE MIHALSKY: Very good.24 Dr. Temm, if you would raise your right25 hand.

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1 DR. MARY TEMM, DSc, MHSA, 2 called as the witness herein, having been duly sworn, was 3 examined and testified as follows: 4 5 JUDGE MIHALSKY: Thank you very much. Could 6 you state your name for the record and spell your name for 7 the court reporter. 8 THE WITNESS: Dr. Mary Temm, last name is 9 T-e-m-m.10 JUDGE MIHALSKY: Thank you.11 Ms. Premeau, will you be taking this?12 MS. PREMEAU: Yes, I will. Thank you.13 JUDGE MIHALSKY: Very well. You may14 proceed.15 MS. PREMEAU: I have the seat of honor this16 morning.1718 DIRECT EXAMINATION19 BY MS. PREMEAU:20 Q. Dr. Temm, please tell us your occupation.21 A. I'm a consultant and researcher in the healthcare22 management field.23 Q. I'm going to be asking you some questions about24 your background as a healthcare management consultant.25 Briefly, where did you receive your undergraduate degree

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1 and when? 2 A. Undergraduate from Benedictine College in 1981. 3 Q. And what was your degree in? 4 A. It was a bachelor's of art in accounting. 5 Q. And after your bachelor's, did you continue with 6 your professional education? 7 A. I did. I have a master's in health services from 8 Arizona State University. 9 Q. And when did you receive that?10 A. In 1990.11 Q. And have you continued education beyond your12 master's level?13 A. Yes. I have my doctoral degree from the14 University of Alabama at Birmingham.15 Q. What is your doctorate degree in?16 A. Actually, it's a doctorate of science in health17 services administration.18 Q. Did you have to do a dissertation for your19 doctorate program?20 A. Yes.21 Q. What topic did you choose?22 A. Patient-centered medical homes. I analyzed the23 practice capabilities and their impact on costs.24 Q. And did you have to defend that dissertation?25 A. Yes.

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1 Q. Are you a member of any professional 2 organizations? 3 A. Yes, I am, with the American healthcare -- excuse 4 me -- the American College of Healthcare Executives as 5 well as the Healthcare Financial Management Association. 6 Q. Are you involved -- do you have any community 7 involvement regarding healthcare issues? 8 A. Yes. Actually, I'm the chairman of the board for 9 the nonprofit entity Glencroft, which is a continuing10 campus of care located over in Glendale.11 Q. What population does Glencroft serve?12 A. It's all seniors. It has independent living,13 assisted living and a skilled-nursing facility.14 Q. Any teaching presentations that you've done?15 A. Various teaching presentations. However, I'm not16 an actual educator at this point.17 Q. Where are you currently employed?18 A. With Temm & Associates, Inc.19 Q. And tell us about Temm & Associates.20 A. Temm & Associates is actually a healthcare21 management consulting firm that's been in existence for22 just about 21 years now.23 Q. And what type of work do you do at Temm &24 Associates?25 A. We do a variety of things. Everything from

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1 working with individual health plans and providers on 2 strategic plans, initiatives. We help primarily in the 3 development and implementation of managed care programs 4 throughout the country. 5 Q. And when you use the phrase "development and 6 implementation of managed care programs," what do you mean 7 by managed care programs? 8 A. Managed care being, obviously, not a 9 fee-for-service traditional insurance-based program, but a10 managed care capitated fully at risk model with insurers11 or governmental entities who basically then reimburse the12 providers based upon the capitation dollars they receive.13 Q. Do you have any experience regarding procurement14 proposals for healthcare services?15 A. Yes. We do a great deal of procurement work,16 actually, with all sectors within the healthcare industry,17 meaning the public sector, which I would consider18 basically your commercial insurance endeavors, as well as19 public, which would include Medicaid and Medicare.20 Q. Okay. And I might have misheard you. When21 you're referring to -- was that the private sector you22 were referring to?23 A. I'm sorry. I said public. Private, yes.24 Q. Would you just clarify your answer as to the two25 types of groups that you do procurement work for?

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1 A. So procurement work would be private and public. 2 Private being the commercial entities, public being 3 Medicaid and Medicare. 4 Q. In your work regarding procurements, have you had 5 any specific experience working on procurements involving 6 behavioral healthcare for individuals with serious mental 7 illness? 8 A. Yes, I have. 9 Q. And have you also had experience in the10 procurement context regarding integrated healthcare for11 individuals with serious mental illness?12 A. Yes, I have.13 Q. What is your understanding -- We kind of throw14 the term integrated healthcare around a little bit in this15 hearing. What is your understanding of what the industry16 meaning is of integrated healthcare?17 A. Right now, I would say from an industry18 perspective, there's two types of integration that's19 happening. One is physical and behavioral health. The20 second is Medicaid and Medicare. So you'll see and hear a21 lot of talk about the dual eligibles, so individuals who22 meet the criteria and are eligible for both Medicaid and23 Medicare. Then the flip side on the behavioral and24 physical components, that could be in those realms, in25 Medicare or Medicaid, or it could be in the commercial

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1 realm as well. 2 Q. Do you have familiarity in the public procurement 3 process regarding the integrated physical and behavioral 4 healthcare component for individuals suffering with 5 serious mental illness? 6 A. Yes, I do. 7 Q. Describe that experience for us. 8 A. Currently, there's a large -- I'm going to say -- 9 or a focus in the industry as it relates to the Integrated10 Health Home model. There's been a lot of funding through11 the Affordable Care Act that's been made available to12 various states. I believe, currently, there are 12 states13 who have actually exercised the right to pull down14 additional funding for that. Of those 12, my firm has15 actually been involved in six of those states. In16 addition to that, really in an ongoing measure we work,17 you know, across the nation with various health plans that18 are being integrated.19 Q. Is Arizona one of the states that has received20 any federal benefits yet for the IHH model?21 A. They actually received, I believe, an -- what do22 I want to say -- a foundation grant, so basically23 exploring the possibility in the integration, but they24 have not yet received, through a state plan amendment to25 their Medicaid program, the capability of pulling that

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1 down. So I believe there's more than 12 states that have 2 actually received sort of that implementation grants from 3 the feds but they aren't necessarily -- they have not 4 translated into actual state plan amendments to be able to 5 pull down the additional funding for that service. 6 Q. When you talk about state amendments, is that 7 something, to your understanding, that needs to be done at 8 a state agency level? 9 A. Correct. So the Medicaid agency within each10 state would be responsible for developing that and11 submitting it to the Center for Medicare and Medicaid12 Services, or CMS.13 Q. Is it fair to say that Arizona has at least taken14 that first step in getting a grant to explore the IHH15 model?16 A. It's my understanding they have, yes.17 Q. Are you familiar with managed care procurements18 involving AHCCCS?19 A. Yes.20 Q. And have you worked on procurements involving21 ADHS?22 A. Yes.23 Q. Any other state agencies here in Arizona?24 A. The department of -- DOA. Department of --25 Q. Administration?

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1 A. -- Administration. Thank you. And DES, DDD. 2 Q. What is your success rate -- your personal 3 success rate in proposals that you work on being awarded? 4 MR. RAY: Objection. I have no idea what 5 that means. 6 MS. PREMEAU: I guess the question is 7 whether the witness knows what it means, Your Honor. 8 JUDGE MIHALSKY: Well, do you mean of the 9 grants that she's been involved in submitting or the10 grants that she has been involved with in other respects?11 MR. RAY: On her own --12 MS. PREMEAU: I'm happy to rephrase the13 question.14 JUDGE MIHALSKY: Okay. Yeah. I mean,15 really what's most important is for me to understand.16 MS. PREMEAU: Absolutely. I was hoping her17 answer would help you understand, Your Honor. But I agree18 with your goal and it will be my goal too throughout this19 hearing.20 JUDGE MIHALSKY: Thank you.21 BY MS. PREMEAU:22 Q. Dr. Temm, let me rephrase. You've participated23 in preparing a number of proposals regarding behavioral24 healthcare and physical healthcare, correct?25 A. Correct.

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1 Q. And in the proposals that you have assisted in 2 drafting, approximately what percentage of those proposals 3 have been awarded to the people you're working with? 4 A. I'm going to clarify that a little bit, if you 5 don't mind. 6 Q. Sure. 7 A. Because our role sometimes is different. In 8 certain instances, we -- my firm, actually -- we go from 9 start to finish, meaning we would actually do all the10 physical writing, the actual production of the documents11 that are submitted, whether it's electronic or paper, and12 we really go from point A to point Z. On those, we've13 actually had a 92 percent success rate.14 There are other times that I personally or15 one of my associates are actually assigned and we16 participate with others in doing procurements. Those I17 don't have a percentage to give you. But those are ones18 where we actually are more in an advisory state, less of a19 production mode.20 Q. Is it fair to say there have been proposals that21 you have participated in that have not been awarded to22 your client?23 A. Yes.24 Q. What is your standard practice when a proposal25 that you have participated in has been denied?

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1 A. One of the first steps we usually do is request, 2 usually through public information act -- we try to 3 actually obtain the scoring sheets, meaning the evaluation 4 tools that were used, the -- how the points are added up, 5 what ultimately the scoring criteria is. So we're looking 6 for what was the evaluation, what was the criteria that 7 was -- the response was being held to, where did we meet 8 it, where did we fail, where did others meet it. You 9 know, kind of lessons learned for next procurements or,10 actually, if there would be a bid protest.11 Q. Let me bring up on the screen Magellan's12 Exhibit 52. You should see up on the screen, Dr. Temm,13 what we have marked as Magellan 52, which is -- Well, let14 me ask you to tell me what it is.15 A. It's actually a copy of my resumé.16 Q. Did you provide a resumé to Ridenour Hienton &17 Lewis in connection with your retention of your services18 in this matter?19 A. Yes, I did.20 Q. If you could briefly take a look at your resumé,21 let me know if that accurately describes your education,22 experience, and qualifications in this matter.23 A. Yes.24 MS. PREMEAU: Your Honor, at this time we25 would move that Magellan Exhibit 52 be admitted into

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1 evidence. 2 JUDGE MIHALSKY: Magellan Exhibit 52 is 3 admitted. 4 BY MS. PREMEAU: 5 Q. Is there anything else on your resumé or in your 6 professional background, Dr. Temm, that you feel would 7 assist the administrative law judge in understanding the 8 scoring opinions that you have been hired to provide in 9 this hearing regarding Magellan's bid protest?10 A. Primarily just reiterating that I've probably11 done, gosh, at least 50 procurements, probably about 40 of12 those in the public sector, so Medicare and Medicaid. A13 significant number of those have been integrated. I do a14 tremendous amount of work outside of Arizona, as well as15 very familiar with the AHCCCS model as well as the RBHAs,16 DES, DDD, the children's rehabilitative services, so all17 of the different functions here within Arizona, the18 different public sector.19 In all of those cases, I would say, as far20 as the procurements I've been involved with -- the one21 thing I will say is that the key is always, you know,22 evaluating what you actually have been able to -- your23 points that you've actually scored on your procurements.24 Looking at, again, lessons learned, what -- against the25 criteria that was established, where you met the criteria,

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1 where you fell below, where you fell above, and using that 2 as basically, you know, experience to build on, we work 3 with our clients to make sure that, whether they're 4 successful or not, it's always a learning experience as 5 they go through the procurements. 6 Q. Thank you, Dr. Temm. 7 You're aware that this hearing is 8 specifically regarding a solicitation that was issued for 9 a new contract for the Regional Behavioral Health10 Authority for GSA 6, correct?11 A. Correct.12 Q. Are you familiar with -- we call it the RBHA for13 GSA 6? Are you familiar with what the functions are of a14 RBHA?15 A. Yes.16 Q. What are those?17 A. Basically -- it's providing, basically, Public18 Health Services for the behavioral health population,19 which includes not only individuals with serious mental20 illness but also children, general mental health and21 substance abuse. This most recent RFP also expanded that22 to include the physical health coverage for those23 individuals with a serious mental illness.24 Q. Is it your understanding that the RBHA provides25 direct behavioral services?

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1 A. No, they do not. They contract -- It's a 2 managed care model, so it is an administrative arm, if you 3 will, that develops a complete and comprehensive network 4 of providers who actually render the services. The RBHA 5 in this case would be actually responsible for the 6 oversight and monitoring to ensure that services are 7 provided appropriately, timely, and most efficiently, both 8 from a -- what do we say -- an efficacy as well as a cost 9 efficient manner.10 Q. So is it fair to say that -- In fact, let me get11 a demonstrative over here. It might be over this way.12 Dr. Temm, we have what we have identified as13 Magellan 434. You described the RBHA as being the one14 providing the managed care functions. Is that correct?15 A. That's correct.16 Q. And the direct care providers are --17 JUDGE MIHALSKY: Ms. Premeau, would it be18 possible for you to raise -- There you go.19 MS. PREMEAU: I'm doing my Vanna White20 impersonation.21 MR. KAITES: We could just move this, Judge.22 JUDGE MIHALSKY: Yeah, if you could move it.23 MR. RAY: John, is there any way it would24 balance against the bookcase in the back?25 MR. KAITES: Judge, can you see that?

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1 JUDGE MIHALSKY: I can see that. That's 2 much better. 3 MS. PREMEAU: That's much better. 4 Excellent. 5 JUDGE MIHALSKY: Hopefully that's better for 6 everyone else. 7 BY MS. PREMEAU: 8 Q. So, Dr. Temm, using the demonstrative over here, 9 can you explain the difference between the people actually10 managing or providing the services versus the RBHA?11 A. So the direct service providers would be the12 groups that are either -- for the group -- for the13 individuals with serious mental illness, it would be the14 clinics, it would be the psychiatrist, psychologist, all15 the support services. Those are the providers who are16 actually rendering services. The RBHA would be17 contracting with those direct service providers to be able18 to render those services.19 Q. So there's actually -- your understanding is20 there's actually written contracts between the RBHA and21 the direct service providers?22 A. And whether that's -- Yes. And whether that's a23 direct contract or through a contracting entity or a24 contracting vehicle -- currently the provider network25 organizations, that would be one type of contract versus a

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1 direct service provider who could be a direct -- a 2 contract directly with a psychiatrist outside of the PNO 3 structure. 4 Q. Do you have an understanding as to where this 5 structure comes from with the direct service providers 6 contracting directly with the RBHA? 7 MS. DESAI: Your Honor, we object to this 8 line of questioning. Ms. Temm was disclosed as an expert 9 for a very specific issue, and -- not regarding her10 opinion or her understanding with respect to the way the11 RBHA model works or this line of questioning.12 JUDGE MIHALSKY: Ms. Premeau?13 MS. PREMEAU: Your Honor, Dr. Temm is14 establishing her background and knowledge regarding the15 entire solicitation process here, including the direct16 service providers being a specific item that she will be17 testifying to regarding scoring errors that both Dr. Temm18 and Magellan have outlined in Dr. Temm's report as well as19 the bid propose -- Magellan's bid proposal. It's20 important that she has an understanding of what needs to21 happen to know whether or not things were scored22 appropriately.23 And I can give you a very clear example. A24 point deduction that Dr. Temm will be testifying to is25 that Magellan lost points for allegedly providing

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1 services. Now, she can't testify as to whether that was 2 an appropriate point deduction unless I can establish that 3 she understands what the RBHA's role is and whether they 4 should have lost points for that. And it's a specific 5 point deduction that's outlined in her report and 6 corresponds with the bid proposal. That's what we're 7 talking about here, Your Honor. 8 JUDGE MIHALSKY: The objection is overruled. 9 You may proceed.10 MS. PREMEAU: Thank you, Your Honor.11 BY MS. PREMEAU:12 Q. Back to my question, Dr. Temm. Do you have an13 understanding as to why there's this structure with the14 RBHA on top and the direct service providers below?15 A. It's my understanding that that's really a16 process that's evolved over the years and related to some17 legislative changes as well. Years ago, the RBHAs were18 allowed to actually be service providers -- I believe19 ValueOptions and maybe even prior to that -- that they20 actually provided direct services. They owned the clinics21 that were primarily serving the individuals with serious22 mental illness. With the legislative changes, it mandated23 that the RBHA no longer be a direct service provider,24 basically putting them in more of that managed care25 function and not being a direct deliverer of services.

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1 Q. Dr. Temm, you mentioned that previously the RBHA 2 was allowed to be basically on both sides of the line. Is 3 that correct? 4 A. That's correct. 5 Q. You mentioned ValueOptions had its own clinics. 6 Did you, as a professional in the industry, experience any 7 problems with ValueOptions being both the RBHA provider 8 and providing direct services? 9 A. I did actually work with some providers that I10 know the issue was raised that they were reimbursed, at11 the community level, less than what ValueOptions was12 reimbursing themselves for actual services. That was a13 large problem and I think ultimately led to some of the14 legislative changes.15 Q. So now your understanding is managed care16 services above the line, direct care providers below the17 line, correct?18 A. Correct.19 Q. Dr. Temm, you're very familiar with the actual20 solicitation that's at issue in this hearing, aren't you?21 A. Yes, I am.22 Q. Tell us how you first became familiar with this23 particular solicitation.24 A. Actually, I was contracted by another party and,25 actually, I worked with them on their strategies and

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1 development of a response to this RFP. 2 Q. Would that be United? 3 A. Yes. 4 Q. My understanding is you have a confidentiality 5 agreement with United regarding the specifics of the 6 strategies and things of that nature. Is that correct? 7 A. Yes. As I would with any client. 8 Q. But broadly speaking, can you describe the type 9 or category of work that you provided for United in10 connection with submitting a proposal to this particular11 scope of work?12 MS. DESAI: Objection, Your Honor. We filed13 a motion in limine specifically on the topic of the United14 protest and any work that was done with respect to the15 United protest in this case and Your Honor has already16 granted that motion in limine.17 MS. PREMEAU: Your Honor, my understanding18 of the motion in limine was that we could not testify as19 to the contents of the United bid proposal and we are not20 going to enter any evidence as to the United bid proposal.21 But to the extent that Dr. Temm reviewed the scope of22 work, not within just the past month since she was23 retained by our firm, but actively worked with the scope24 of work and developed an understanding as to what the25 scope of work required in order to evaluate whether

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1 Magellan was scored correctly, the general description of 2 the type of work she did goes directly to her knowledge 3 and experience and qualifications to testify as to scoring 4 issues that she saw. 5 JUDGE MIHALSKY: I'm looking at case 6 management order number 15 and the motion in limine 7 concerned United Healthcare's bid protest, and I will not 8 hear any evidence about the bid protest. However, to the 9 extent that Dr. Temm's involvement in preparing United10 Healthcare's bid allows her to understand the nature of11 the request for proposals, I will allow such testimony.12 MS. PREMEAU: Thank you, Your Honor. That13 is the scope.14 JUDGE MIHALSKY: The objection is overruled.15 MS. PREMEAU: That is the scope we're16 seeking. Thank you, Your Honor.17 BY MS. PREMEAU:18 Q. Dr. Temm, you heard Judge Mihalsky's19 clarification. Do you understand what I'm asking you when20 I ask for a broad description of your work with the scope21 of work when you were working with United to create a22 proposal to this RFP?23 A. Yes.24 Q. Broadly speaking, tell me the amount of time you25 spent reviewing the scope of work, your understand -- you

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1 know, the sweat, if you will, the descriptive sweat of 2 what you put into understanding and preparing a proposal 3 without going to any specific items that were contained in 4 the United proposal or bid protest. 5 A. I think I would actually start with probably 6 almost a year prior to, actually, the release was 7 reviewing prior RFPs, analyzing the current contracting 8 structure for the RBHAs, reviewing all information related 9 to the integrated approach, and then once the RFP was10 released, pouring through it painstakingly to look at all11 the required services and developing strategies to meet12 the scope of work services.13 Q. And you -- again without going into specific14 information contained therein, not only did you work on15 the United bid proposal but you did work on the United bid16 protest, correct?17 A. That's correct.18 Q. And, again, without getting into content,19 describe the sweat hours, if you will, of what you20 reviewed in order to be knowledgeable to assess scoring21 errors on your -- on the United bid protest.22 A. Based on the documents that were available,23 looked at the evaluation guidelines, also the scoring24 tools and the scoring sheets to identify and try to25 understand the scoring that resulted from the evaluation

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1 of the bids. 2 Q. Is that pretty much what Magellan has also hired 3 you to do here? 4 A. Yes. 5 Q. Did you go through a similar process when 6 Magellan retained you to review its bid protest and 7 compare it to the scoring guidelines? 8 A. I would kind of have the caveat that I really 9 didn't do this for Magellan, but I did it for Ridenour.10 So I was retained by Ridenour and not Magellan. But I did11 the exact same thing, is looked at the -- based on the12 evaluation criteria that was available, went through and13 analyzed and really sought out the evaluation components14 that were brought up in those scoring tools and reviewed15 those based on the objective information that was16 available.17 Q. And the objective information is information that18 was available on ProcureAZ, correct?19 A. Correct.20 Q. And provided by ADHS?21 A. Correct.22 Q. Have you ever worked with Magellan before?23 A. No, I have not.24 Q. Did you speak with anyone from Magellan before25 preparing your report in this matter?

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1 A. No, I did not. 2 Q. Is there a reason why you didn't speak with 3 anyone from Magellan to get their input before preparing 4 your report? 5 A. I wanted to make sure that the report was as 6 objective as possible, so basically I wanted to make sure 7 that as I was reviewing it I was looking at nothing more 8 than what was on the printed page and evaluating it from 9 that perspective. So there was really no need to talk to10 anyone else. I mean, it was just -- I was putting myself11 in an evaluator position that this is what was submitted12 and I'm reading it and evaluating it just on the face13 value.14 Q. It's your understanding that that's how proposals15 under the procurement code are supposed to be scored based16 on what's on the face of the document?17 A. Yes.18 Q. Excluding any prior knowledge you might have19 about any bidder?20 A. Correct.21 Q. Have you ever worked with MMIC, MercyCare, or22 MIHS?23 A. Yes.24 Q. Which entity have you worked with before?25 A. MercyCare Plan.

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1 Q. When did you work with MercyCare? 2 A. In 1999 and 2000, I assisted them with developing 3 and procuring the Arizona Long Term Care contract, so the 4 ALTCS contract for Maricopa County. 5 Q. Was that through a procurement process similar to 6 the one at issue here? 7 A. Very similar. 8 Q. You mentioned the ALTCS program, Arizona Long 9 Term Care --10 A. Care System.11 Q. -- System. Can you briefly describe that system12 for us.13 A. ALTCS is the Medicaid division. It's actually14 run by the AHCCCS administration. It covers any15 individual who's, quote, at risk of institutionalization.16 Primarily it's serving seniors and the physically disabled17 individuals that meet that category. They basically have18 two categories of eligibility that an individual has to be19 able to meet, which is, one, the financial, so basically20 your Medicaid guidelines, and the second then would be a21 physical component, that someone is at risk of being22 institutionalized.23 Q. So they need to meet both the financial and24 physical criteria --25 A. Correct.

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1 Q. -- to be in the ALTCS system? 2 A. Correct. 3 Q. Did your work with MercyCare for the ALTCS bid 4 proposal involve any integrated care? 5 A. Yes. 6 Q. Okay. Tell me about that integrated care because 7 this is now back in 1999, 2000. 8 A. So behavioral health is actually -- has been 9 integrated on the ALTCS side for some time. So, again,10 we're talking about a population that's fairly nonmobile,11 I guess is the best way to say it. So these are12 individuals who either are living in a nursing home, some13 of the assisted-living-type and support-type housing, or14 in their own homes, but they are individuals that15 obviously are not mobile. You're supporting them with16 home- and community-based services, whether that's17 actually personal care, home-delivered meals, nursing18 services -- delivering, you know, services that allow them19 to remain in the least restrictive setting. Behavioral20 health services are also covered for that population, so,21 again, there's, I would say, really a small network of22 providers who render services to those individuals.23 Q. You say a small network. Do you have a ballpark?24 A. Oh, I would say less than 50 in Maricopa itself.25 JUDGE MIHALSKY: Is that behavioral health

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1 services you're talking about? 2 THE WITNESS: Yes, ma'am. 3 BY MS. PREMEAU: 4 Q. Is it fair to say that, under the ALTCS model, 5 the primary focus is on the physical with the behavioral 6 being integrated into the physical? 7 A. That's correct. 8 Q. Compare that to the targeted population under the 9 solicitation that we're all here about for integrating10 physical and behavioral healthcare for individuals with11 serious mental illness.12 A. They're two very different populations. The13 population relates to the RBHA, so the individuals with14 SMI are a much more mobile population and also much more15 severely impacted by their behavioral health condition and16 illnesses. The ALTCS population, as I said, is very17 stationary. It's not as if you don't know from day to day18 where the individuals will be. They're pretty much19 contained, you know, in their home setting, whatever that20 may be. The SMI population is much more fluid, many21 homeless, but many of them also can be working individuals22 as well. But a very different population mix.23 Q. Does that different population mix create greater24 challenges to administrating the physical and behavioral25 healthcare for the individual suffering from a serious

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1 mental illness? 2 A. In my opinion, absolutely. 3 Q. Why is that? 4 A. It's just a much more demanding population. And 5 I mean that from the perspective of they need many more 6 services than those in the ALTCS population. 7 Q. Do you have an understanding as to how the 8 delivery of RBHA services will be changed under the new 9 RBHA contract compared to the existing RBHA?10 A. Yes.11 Q. Okay. Explain what you understand the changes in12 the delivery of services to be.13 A. Well, I will say for the general mental health,14 substance abuse and children's populations, it will be the15 same services. For the individuals with serious mental16 illness, that population is really what's changing. And17 for those individuals their behavioral health services18 will remain the same. Their physical health component, so19 their Medicaid-covered services and also potentially their20 Medicare services, will now also be delivered by the RBHA.21 So they'll become, if you will, back to your diagram, the22 managed care entity over not only the physical direct care23 services but also the -- excuse me -- not only the24 behavioral but also now the physical.25 Q. Would it be fair to say that the ALTCS proposal

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1 had physical -- combined behavioral -- this is kind of the 2 flip, the RBHA had behavioral and now we're adding 3 physical? 4 A. That's correct. 5 Q. The lion's share of RBHA is still the behavioral? 6 A. That's correct. 7 Q. Under the new proposal. 8 A. Correct. 9 Q. I apologize.10 Can you give me a working example of how11 this new integrated physical and behavioral care would12 come together under the new RBHA?13 A. That would really depend on -- I think each of14 the proposals from the respondents all had a little15 different flavor to them. But I would say really what16 came across in materials prior to the RFP itself, as well17 as the RFP, is the state was looking for really an18 integrated model that looked at some -- in some way19 similar to the Integrated Health Home model that's really20 been kind of the push with the Affordable Care Act as well21 as other activities that have been out in the industry.22 So looking for more of a collaborative type of integrated23 model. By that I mean there would be care coordination,24 care management, there would be a care delivery team, a25 multidisciplinary team approach, so an individual would no

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1 longer be in two silos, if you will, the physical and 2 behavioral; that this would be a blended model with a team 3 of individuals who could actually assist them with 4 addressing the whole health needs of that individual. So 5 whether it was a physical need, a behavioral need, even a 6 social need, that all those items would be addressed with 7 that individual. 8 Q. And are there aspects provided under the RBHA 9 that will remain the same, kind of the day-to-day10 functions, if you will?11 A. Yes. So I would say your typical managed care or12 payor functions, such as being able to receive13 eligibility, provide information about eligibility to the14 provider network, being able to accept and process15 appropriately and pay in a timely manner all the claims16 and encounter information, being able to assist and manage17 basically the medical management or utilization management18 components related to whether it's an inpatient stay,19 whether it's ensuring that all services are medically20 necessary and appropriate for those individuals. All of21 the standard services, credentialing of providers, all of22 those functions would be kind of the ongoing functions of23 a RBHA.24 Q. Are you familiar with any of Magellan's25 Integrated Health Homes?

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1 A. In Maricopa County? 2 Q. In Maricopa County, yes. 3 A. Yes. 4 Q. Thank you for clarifying. 5 A. Yes, I am. 6 Q. What is your understanding of the approach taken 7 through the Magellan Integrative Health Home clinics? 8 A. It's my understanding the models that they 9 actually have developed is actually doing that Integrated10 Health Home model, a team approach with actually a11 physical health provider located at the clinics for the12 seriously mentally ill. Again, using a team approach, not13 just co-location, but a team is actually brought together14 that's looking at the -- the whole person, addressing all15 their needs, both physical, behavioral and social needs.16 Q. Pull up MMIC Exhibit 58. It takes awhile with a17 document this size. MMIC 58, do you recognize this18 document?19 A. Yes.20 Q. What is this document?21 A. Actually, this is the document related to -- this22 is actually the engagement letter.23 Q. And as you clarified earlier, it's with Ridenour24 Hienton & Lewis, correct?25 A. Correct.

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1 Q. Have you ever worked with Ridenour Hienton & 2 Lewis before? 3 A. No, I have not. 4 Q. I hadn't asked you that. I'm glad that's the 5 answer. Broke the cardinal rule here. 6 Regarding what you were hired to do -- Let 7 me see if I can find the exact language here. "A. 8 Service to be provided. Temm & Associates will" work -- 9 "will review and analyze scoring documents and identified10 potential scoring errors that RHL and Magellan Health11 Services of Arizona, Inc. (Magellan) believe occurred12 during the scoring of Solicitation ADHS 13-000257."13 [Quoted as read.] Is that what you were retained to do?14 A. That's correct.15 Q. You testified earlier, though -- Did Magellan16 give you a list of scoring errors and say "Please confirm17 these are accurate"?18 A. No.19 Q. You did the blind approach --20 A. Correct.21 Q. -- so to speak?22 A. Correct.23 MS. PREMEAU: Your Honor, we would ask that24 MMIC Exhibit 58 be admitted into evidence.25 JUDGE MIHALSKY: MMIC 58 is admitted.

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1 BY MS. PREMEAU: 2 Q. In preparing your report, you relied on Ridenour 3 Hienton & Lewis to provide certain documents to you, 4 correct? 5 A. Correct. 6 Q. In fact, you outlined -- We're going to get to 7 your report, but you prepared a substantial report in this 8 case as well, correct? 9 A. Correct.10 Q. In that report, you outlined a couple of pages of11 documents that Ridenour Hienton & Lewis provided you?12 A. That's correct.13 Q. Do you feel that Ridenour provided you sufficient14 documents for you to form an opinion in this case as to15 scoring errors that occurred against Magellan?16 A. Yes.17 Q. Are there any documents that you wish you had18 seen that we, being Ridenour, did not provide to you?19 A. No.20 Q. Can you estimate approximately how many pages of21 documents you reviewed in preparing your report in this22 matter?23 A. Thousands.24 Q. Literally thousands?25 A. Literally thousands, yes.

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1 Q. Magellan's bid proposal itself is approximately 2 2200 pages. Did you review that? 3 A. Yes, I did. 4 Q. And you're -- 5 A. All 2200. 6 Q. All 2200? 7 A. All 2200. 8 Q. How long did that take? 9 A. It took hours.10 Q. I would like to bring up Magellan 397, your11 actual report. And Dr. Temm, Magellan 397, is it true12 that you've prepared this report entitled Solicitation13 Scoring Analysis?14 A. Yes.15 Q. What was your method for preparing this report?16 A. The first step actually was looking at -- since I17 was already familiar with the RFP itself, was looking18 first at the evaluation guidelines that were given to the19 evaluators. Second, looking -- once I looked at those,20 also looking at the Magellan proposal, reading it21 literally cover to cover. And then going back and looking22 at, side by side, the scope of work with their proposal to23 identify any areas that would be considered, in the terms24 of the evaluation guidelines, weaknesses or strengths.25 And then looking specifically at the scoring tool, the

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1 ones that were outlined on that document, and either 2 validating that they were, in my opinion, correct or if I 3 found evidence to dispute what those findings were. 4 Q. When we look to the second page -- actually, I'm 5 sorry. Let's go down to the third page. Oh, it is 6 page 2. I apologize. But it's Bates number 3 of 7 Magellan 397. So you identified the Magellan proposal as 8 the documents you reviewed, correct? 9 A. Correct.10 Q. And you reviewed MMIC's proposal as well?11 A. Correct.12 Q. The solicitation itself, correct?13 A. Correct.14 Q. The evaluation of offeror's report, you reviewed15 that in forming your opinion?16 A. Yes.17 Q. The ADHS agency report?18 A. Yes. Although I will say that on that one and19 probably the remainder of that, on that first listing, I20 actually did not read those until I made my -- basically21 had drafted my report.22 Q. And that was to give you the fresh set of eyes?23 A. Correct.24 Q. Then after drafting your report you reviewed25 these other documents identified here?

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1 A. Correct. 2 Q. Then you also identify various attachments, 3 resumés, financial statements, scoring sheet for the RFP. 4 You reviewed that as well? 5 A. Yes. And actually on these documents, there were 6 items that I didn't find with the original file, so in 7 working with -- your firm actually requested the 8 additional documents and these were provided. 9 Q. And so upon receiving the additional documents,10 at that point you were satisfied you had what you needed11 to form an opinion?12 A. Yes.13 Q. Then you mentioned some additional files that14 were considered. Briefly describe what documents those15 are.16 A. These are some evaluation tools and scoring17 summaries that have been used with other Arizona agencies.18 These in particular happen to be -- one was for the ALTCS19 RFP. The others related to the AHCCCS most recent RFP.20 And these were looking at -- because of my report, I gave21 examples of what I would normally be looking for as it22 relates to evaluation criteria, how something is being23 evaluated, and then ultimately how it's scored and24 weighted, so I was looking for examples to provide you25 that identify what those -- an example of here's what I

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1 would normally expect to see. 2 Q. I want to bring up another exhibit, Joint 3 Exhibit 9. Joint Exhibit 9, Special Instructions to 4 Offerors, is this one of the documents that you reviewed 5 prior to drafting your report? 6 A. Yes. 7 Q. Do you recall anything that was of particular 8 significance for you in preparing your report regarding 9 Joint Exhibit 9? And I can -- are you allowed to --10 A. Can I scroll?11 Q. You can scroll.12 A. Oh, I can scroll.13 Q. That's perfect.14 A. Thank you.15 Q. We get very territorial about these mouses.16 A. Probably -- the instructions -- I made sure that17 I reviewed everything to make sure I had a clear18 understanding of what the special instructions were to the19 offerors, what documents in particular had to be provided,20 the evaluation criteria obviously are listed here on21 page 5 of that document, which talks about the -- quote,22 the evaluation factors.23 Q. If you wouldn't mind backing up for just a brief24 moment. I got distracted. So exhibit -- or Section J you25 mentioned, the criteria, what was your understanding of

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1 the cri- -- according to Joint Exhibit 9, your 2 understanding of the criteria for scoring the proposal? 3 A. Well, as it lists here, this wouldn't be 4 untypical of what you would see. Usually, it's disclosed 5 what the primary evaluation -- 6 MS. DESAI: Objection, Your Honor. This is 7 precisely the issue that we raised yesterday in terms of 8 Dr. Temm testifying about the typicality or untypicality 9 of criteria that's used in scoring, which is outside the10 scope of what was in the initial bid protest filed by11 Magellan.12 MR. HONIG: Your Honor, ADHS would join in13 that objection.14 MS. PREMEAU: Your Honor, as a threshold15 matter she's testifying to an exhibit that's been admitted16 into evidence. Second, as far as the evaluation criteria,17 that's part of how she's going to be able to establish the18 scoring errors.19 Finally, when we see the -- this is motion20 in limine 1 that was filed by MMIC, I believe joined in by21 the other parties. They said the scoring issue before22 OAH, to the extent it's properly before OAH at all -- we23 get a lot of those comments -- is not about the alleged24 adequacy of Magellan's bid or alleged defect in Mercy25 Maricopa's, but rather centers exclusively on whether

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1 ADH's evaluation method was reasonable. This is what MMIC 2 put in their motion in limine to try and keep Dr. Temm off 3 the stand. 4 Your CMO number 10, Your Honor, also 5 specifically addressed what it is that we are allowed to 6 be able to present evidence to. And in CMO number 10, 7 Your Honor -- and this was in response to MMIC's motion in 8 limine -- you wrote at page 4, beginning at line 16, the 9 scope of review was limited to determining whether the10 agency's process evaluation and contract award were11 reasonable and consistent with the terms of the12 solicitation, taking into account the expertise of the13 evaluators. We are -- this is exactly what we're doing.14 It's what MMIC said we were exclusively limited to doing,15 Your Honor. We're trying to establish the testimony16 that's been permitted in this case.17 JUDGE MIHALSKY: I did permit that, but you18 have, kind of, also the requirement that the specific19 deficiencies must have been identified in the initial bid20 protest. And yesterday I ruled that I would not consider21 the adequacy of the scoring criteria. And so I do request22 that you not present any evidence on that. However, to23 the extent that Dr. Temm wants to testify about her24 understanding of the scoring criteria and the requirements25 of the scoring criteria but not its adequacy or

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1 inadequacy, that there should have been different scoring 2 criteria, I will allow it. 3 MS. PREMEAU: Thank you, Your Honor. 4 JUDGE MIHALSKY: So I'm cautioning you. I 5 will allow you to proceed to that extent. I am overruling 6 the objection, but tread carefully here. 7 MS. PREMEAU: Thank you. 8 BY MS. PREMEAU: 9 Q. Dr. Temm, I will rephrase. What was your10 understanding of the evaluation criteria excluding any11 reference to other criteria you may be familiar with based12 on your experience?13 A. What's listed here, as it's termed here, is the14 evaluation factors that were considered in the evaluation,15 which is the method of approach, experience and expertise16 and then compliance with the solicitation requirements.17 And those were listed, I think they indicated here, in the18 order of their importance.19 Q. So that's part of the criteria that you looked at20 in comparing Magellan's alleged scoring errors to the21 errors that you found?22 A. I would say that there's somewhat of a23 distinction, though, between evaluation criteria and24 evaluation factors, and these were the factors, the titles25 of the factors that, basically, they're using.

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1 Q. And then you notice there's an asterisk. What 2 was your understanding of strengths and weaknesses as it 3 applied to this solicitation? 4 A. As the asterisk indicated here, a strength -- it 5 basically would be if you favorably exceeded the 6 solicitation minimum standards and it is exceptional. 7 Q. I would like to also show you Magellan 298. And 8 on this one I'm just going to ask you to take a look at 9 the very first page, Attachment 6, Method of Approach. Is10 this first page something that had importance to you in11 determining how Magellan's bid proposal was scored?12 A. Yes.13 Q. And explain your understanding of the14 instructions for method of approach as it was used in this15 solicitation without any comparison to other16 solicitations.17 A. These are the instructions that tell the offeror18 that this is the format that they're to use, so it19 provided -- the response actually was put into this20 format. It was addressing each of the scope of work items21 that were identified. They were underlined if it22 contained subsections that needed to be addressed. And23 there were also instances where it would say in the text,24 quote, when responding, and that would indicate either a25 specific item or question or subsection to be responded

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1 to. 2 Q. And this was something that you also relied on in 3 forming an opinion as to whether Magellan was properly 4 scored in this matter? 5 A. That's correct. 6 Q. I would like to show you now Joint Exhibit 40. 7 Initially, I just want to have Joint Exhibit 40, 8 Magellan's bid protest. You're aware that Magellan claims 9 there was bias in the scoring, correct?10 A. Correct.11 Q. How do you determine bias?12 A. Basically, looking at if someone is treated more13 favorably or unfavorably based on objective criteria.14 Q. Was part of your scope of work to determine15 whether Magellan was biased in the scoring of its16 proposal?17 A. I don't believe I really addressed it18 specifically, but I certainly discovered bias, I believe,19 in addressing this.20 Q. Let's look at page 5 of Magellan's bid protest.21 We'll call it Bates 5, referring to the numbers at the top22 left -- right corner of Joint 40, Executive Summary. Item23 number 4, Magellan alleges that it found significant24 scoring errors and inconsistencies in the evaluation25 process. Is that addressed in your report?

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1 A. Yes. 2 Q. At page 6, Magellan found "MMIC bid items and 3 experience provided by Magellan and Magellan received less 4 points for the same items than did MMIC." Did you find -- 5 is that addressed in your report? 6 A. Yes. 7 Q. You're aware that Magellan lost this bid by 8 95 points? 9 A. Yes.10 Q. Out of a total thousand, correct?11 A. Correct.12 Q. Let's go to page 22. Page 22, under argument13 VII, the second paragraph, Magellan identifies four types14 of errors in the scoring of its bid proposal. Item15 number 1 refers to "instances where Magellan was deducted16 points for failing to include information in its Proposal17 that, objectively speaking, was included." Is that18 addressed in your report?19 A. Yes, it is.20 Q. Item number 2, "Magellan's score was deducted21 points more than once for the same stated deficiencies."22 Is that addressed in your report?23 A. Yes, it is.24 Q. Item 3, "instances where the score given or the25 points deducted are not, by any rational measure,

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1 consistent with the quality of Magellan's Proposal 2 relative to that of the successful offeror, or Magellan 3 was measured against requirements not required by or 4 articulated in the Solicitation." Is that addressed in 5 your report? 6 A. Yes. 7 Q. Item 4, "scoring irregularities that reveal a 8 substantial bias against Magellan and in favor of the 9 successful offeror." Is that what you discovered as well?10 A. Yes.11 Q. I would like to go back to your expert report,12 focusing exclusively at this time on Exhibit D.13 MS. PREMEAU: And, Your Honor, we do have a14 bit of a housekeeping issue that I would like to address.15 There were portions of Dr. Temm's report that, based on16 your ruling yesterday, would not be admitted into17 evidence. I am hoping that at the end of Exhibit D, which18 is a separate exhibit, that we would be able to offer a19 portion or a redacted version of Magellan 397, consistent20 with this court's order to remove any reference to21 information that hasn't been provided. Alternatively, we22 can identify Exhibit D as a separate freestanding exhibit,23 but we would like for the objective scoring analysis to be24 able to be admitted into evidence.25 JUDGE MIHALSKY: Which is Exhibit D?

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1 MS. PREMEAU: Exhibit D. 2 MS. DESAI: Your Honor? If I may. 3 JUDGE MIHALSKY: Yes, ma'am. 4 MS. DESAI: We object to the admission of 5 this exhibit as it's currently filed because it includes 6 the report. But even with respect to Exhibit D, there are 7 arguments and claims with respect to objective scoring 8 errors that are contained in Exhibit D that are not in the 9 initial bid protest. So I think the better way to do10 this, as opposed to admitting even just Exhibit D, is to11 have Ms. Temm testify or have Magellan ask the questions12 with respect to the specific scoring errors and then at13 the conclusion determine whether or not any portion of14 this exhibit should be admitted.15 MR. HONIG: ADHS would join in that.16 MS. PREMEAU: Your Honor, we're fine to lay17 the foundation. What you will be hearing is that18 Dr. Temm's report matches up with the scoring errors by19 Magellan and, in fact, at the end of her testimony, she20 finds errors that are not in her report that Magellan did21 find that she was able to corroborate on her own, so we22 can leave -- I wasn't moving to admit it at this time. I23 was bringing up a logistical housekeeping issue of we had24 a deadline for exhibits, we now have a ruling that25 modifies the scope of our exhibit and I want to make sure

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1 that we have the ability to get it into evidence in some 2 form. 3 JUDGE MIHALSKY: Certainly in light of my 4 ruling, which I don't believe that Magellan anticipated, I 5 do want to have as much of Dr. Temm's report as is 6 admissible in light of my ruling. And so I will probably 7 not admit Magellan's Exhibit 397 simply because it needs 8 to be redacted. With respect to Exhibit D, you can lay 9 the foundation and, if appropriate, I will accept it into10 evidence and probably will ask the webmaster, if possible,11 if it is admitted, to add it to the electronic docket in12 this matter.13 MS. PREMEAU: Thank you, Your Honor.14 BY MS. PREMEAU:15 Q. Dr. Temm, we're now at page 65 of Magellan 397.16 Are you familiar with Exhibit D to your report?17 A. Yes.18 Q. And since drafting your report, were you -- did19 you subsequently take the time to compare the errors that20 you identified in Exhibit D to the errors that Magellan21 identified in its bid protest?22 A. Yes.23 Q. This is where it's going to be tricky and we're24 going to wish we had two monitors. But I would like to25 bring back up Magellan's bid protest.

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1 JUDGE MIHALSKY: I believe that was Joint 2 Exhibit 40? 3 MS. PREMEAU: Yes, Your Honor. 4 BY MS. PREMEAU: 5 Q. And on Joint Exhibit 40, I would like us to go to 6 the scoring section. So when we look at Magellan's bid 7 protest, at page -- again, I'm going to use the Bates 8 number references -- page 22, at the bottom Magellan has 9 argument "A. The Scoring of Magellan's Proposal contains10 multiple objective scoring errors." Let's take a look at11 the next page, 23. "Magellan lost ten points for alleged12 staffing deficiencies . . ." and it gives two examples of13 what it believes it lost 10 points for.14 Does your report address alleged staffing15 deficiencies that resulted in a 10-point deduction for16 Magellan?17 A. Yes.18 Q. Do you agree with the rationale that Magellan put19 into its bid proposal?20 A. On this one, no.21 Q. Okay. Tell me what -- as to those 10-point22 items, tell me what you agree with, what you disagree23 with.24 A. On the first example, for the medical management25 administrator, I would agree with the initial findings of

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1 the evaluators that, as it was presented, the individual 2 did not have the -- did not meet the scope of work 3 requirements that were listed. 4 Q. How about for the medical management 5 administrator [sic]? 6 A. On that one, I would agree, the scope of work 7 indicated that the individual had to be an Arizona 8 licensed nurse, physician, I believe physician assistant, 9 or have a master's within specific fields of expertise.10 This individual actually is an Arizona licensed R.N. and11 met that criteria.12 Q. Dr. Temm, this is the tricky part. Do you agree13 that Magellan should not have lost 10 points objectively14 regarding staffing deficiencies?15 A. Yes.16 Q. Where in Exhibit D of your report -- Now, do you17 have a copy of your report with you?18 A. I do.19 MS. PREMEAU: Your Honor, perhaps for20 convenience, Dr. Temm can look at her physical . . .21 Your Honor, we can give you a copy from the22 shelf so it's easier to flip through instead of the23 monitors back and forth.24 MS. DESAI: That's fine, Your Honor.25 MS. PREMEAU: I'm trying to think of the

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1 best -- 2 JUDGE MIHALSKY: As long as there's no 3 objection to that, that's fine. 4 MR. JOHNSON: Judge, didn't you have a CPO 5 decision -- or in the initial bid protest -- 6 JUDGE MIHALSKY: I do have my own copy of 7 the bid protest. 8 MS. PREMEAU: Of the bid protest. This is 9 Dr. Temm's report.10 MS. DESAI: This is just Exhibit D, right?11 MS. PREMEAU: This is just Exhibit D. In12 fact, if you prefer, we could separate out Exhibit D so13 the Judge doesn't see the other pages, but I think she'll14 not turn to them.15 MS. DESAI: I trust you.16 JUDGE MIHALSKY: You can see what I'm doing.17 So I promise. Not deliberately anyway.18 MS. PREMEAU: I'm not dropping any money in19 front of you, so . . .20 BY MS. PREMEAU:21 Q. So, Dr. Temm, you have Exhibit D to your report22 in front of you and we have Magellan's bid protest up on23 the screen. Will this make it easier for you to be able24 to testify as to what is in Magellan's bid protest and25 where you can then find it in your Exhibit D?

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1 THE WITNESS: If it's all right with the 2 judge -- Your Honor, I did mark just for myself -- to be 3 easy, I went through my report and marked the tabs so it's 4 just -- that's the only notes I have on here. So it's the 5 same thing we're looking at, it's just I marked each tab 6 that we refer to back to my report. 7 MS. PREMEAU: Anything to expedite. Thank 8 you, Dr. Temm. 9 BY MS. PREMEAU:10 Q. Now that you have your report in front of you,11 where in Exhibit D would we find your explanation for12 Magellan's loss of 10 points?13 A. In the initial part of the report, it's on14 page 16, which actually defines the evaluation of the15 findings, it has quoted what the initial evaluation led16 to. I've included the scope of work requirements, and17 then actually in tab 12 of the report is a copy of the18 page from scope of work, which identifies the requirements19 for the maternal health EPSDT coordinator, and then also20 behind that is the copy of the resumé.21 Q. So starting at page 16 of Exhibit D, original22 points deducted was 10. You revised it to 5. You didn't23 give Magellan all the points they wanted, did you?24 A. No, I did not.25 Q. That's because you agreed with one of their

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1 scoring errors but not the other scoring error? 2 A. That's correct. 3 Q. Go to the next item in the -- Magellan's 4 proposal. "Magellan lost fifteen points because 5 'Organizational staff is under represented in acute care 6 experience.'" Do you address that in your report? 7 A. I do. It's on page 15 and then tab 11 is the 8 supporting documentation. 9 Q. All right. Explain for us, why is it that you10 objectively believe that Magellan lost 15 points that it11 should not have had deducted?12 A. Well, it's very unclear. There's no definition13 of acute care in this RFP anywhere. And so normally an14 individual would think of acute care as being -- at least15 I would say an industry standard would be anyone involved16 in physical healthcare. And provided within the RFP17 itself, our resumés as well as tables, which identify the18 number of years individuals had in healthcare or acute19 care as the term is used here. And the tables were also20 even defined a little further, which I think it would be21 very hard to dispute would be considered acute -- not22 acute care, Medicare and Medicaid experience. And, again,23 based on the findings of looking at those tables on the24 resumés, in one instance, if you look at the healthcare25 experience, it's over 600 years. If you look at --

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1 MS. DESAI: Objection, Your Honor. This 2 theory or argument that Dr. Temm is testifying about is 3 not contained in Magellan's initial bid protest. And you 4 can see this by comparing exactly the argument that 5 Dr. Temm is reading from on page 15 of her report to 6 bullet two on page 17 of Magellan's initial bid protest. 7 And this is an example of what I was referring to earlier 8 where the objective scoring error was raised by Magellan 9 but for a different reason and a different explanation as10 to why the points were improperly awarded or deducted.11 JUDGE MIHALSKY: Ms. Premeau?12 MS. PREMEAU: Your Honor, Dr. Temm is simply13 providing testimony that supports Magellan's position that14 Magellan was improperly deducted 15 points. Magellan15 argued that objectively it had 36 key personnel positions16 in place, cumulative of 162 years of experience. Dr. Temm17 is simply corroborating that evidence that is in the bid18 protest as well as enhancing it, all within the scope of19 Magellan wrongfully was deducted 15 points.20 Your Honor, quite candidly, if -- They21 filed their motion in limine to exclude Dr. Temm. If all22 she can say is "I agree with the report," we wouldn't need23 an evidentiary hearing.24 JUDGE MIHALSKY: The objection is overruled.25 The ground -- the legal ground was raised in the bid

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1 protest, although the general facts alleged in the bid 2 protest does determine the general scope of the hearing, 3 parties are not limited to the evidence referred to in the 4 bid protest. And so I will allow this evidence. 5 MS. PREMEAU: Thank you, Your Honor. 6 BY MS. PREMEAU: 7 Q. Dr. Temm, you were explaining your explanation 8 regarding why you believe Magellan was improperly deducted 9 15 points as set out on page 15. Would you complete your10 explanation?11 A. I believe I was saying that when you look at,12 basically, the resumés as well as the table that13 summarizes those years of experience from both the14 healthcare line item, if you will, as well as the Medicare15 and Medicaid line items, clearly there's significant years16 of relevant experience that are indicated here.17 Q. Thank you. Looking at the next item on18 Magellan's bid protest, "Magellan lost twenty-five points19 for 'inconsistent experience and expertise' . . ." And20 this is where I get confused, and hopefully you can21 educate me and perhaps other nonmedical people in the22 field, but this has to do with star ratings and things of23 that nature. Do you have an opinion as to whether24 Magellan was improperly deducted 25 points?25 A. I believe that there is an error here. The star

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1 rating was -- excuse me -- the star rating was not 2 included. However, the way the request was in the RFP 3 document, it indicated that it was the company's star 4 rating, and Magellan Complete Care has not yet performed 5 so they would not earn a star rating yet and it was 6 clearly disclosed within the document that there was no 7 star rating to report. 8 Q. And where does this 25-point deduction tie into 9 your report?10 A. Actually, on page 13 of the report and tab 9.11 Q. When you're referencing tab 9, these various12 tabs, these are the documents that were within Magellan's13 proposal that you believe substantiate the summary that14 you're providing in Exhibit D, correct?15 A. Correct. They're the document -- the supporting16 documentation. So it would be either from Magellan's or17 MMIC's response.18 Q. Thank you. So explain for us -- you didn't --19 you didn't help Magellan out too much on this one. You20 went from 25 points to 20 points. Explain why we only got21 20 points on that one.22 A. On this particular item, the evaluation of23 findings is pretty -- it's a conglomerate of various24 things, and looking at it, based on everything that's25 here, the main issue is inconsistent reporting of

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1 experience and expertise related to the parent or 2 affiliated organizations. Although I think it's there, I 3 think it can be a little bit confusing. But, likewise, 4 MMIC's is very confusing as well with the various 5 entities. 6 The other item here is the failure to report 7 the Medicare rating. It was called out specifically for 8 Abrazo Advantage health plan. I would disagree with that 9 and say it's obviously stated here that there is no star10 rating for Magellan -- the Magellan advantage health plan,11 so that's clearly here. I would not penalize them. Based12 on -- then additionally, the audited financial13 statements -- audited financial statements for Magellan of14 Arizona were not found in the response. So looking at15 this, without having any idea of how points are awarded,16 at the values of them, I basically said it looked like17 based on how many elements were here, five points is a18 reasonable amount for the star rating to move it from a19 25-point deduction to a 20-point deduction.20 Q. Thank you, Dr. Temm. The next item, "Magellan21 lost ten points in the Evaluation because the reviewers22 concluded that its 'description of coordination for23 non-SMI population does not include physical healthcare24 consideration.'" [Quoted as read.] Have you had an25 opportunity to review that particular allegation?

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1 A. I have. It was not initially -- an initial 2 finding in my report, but I have looked at that 3 subsequently, and I did find -- 4 MS. DESAI: Objection, Your Honor. This was 5 not disclosed to MMIC. It is not contained within 6 Exhibit D of Dr. Temm's report and so we object to the 7 introduction of entirely new findings that Dr. Temm has 8 made and is about to testify about at this hearing today. 9 MR. HONIG: ADHS would join.10 MS. PREMEAU: Your Honor, we disclosed11 Dr. Temm as an expert who would testify as to scoring12 errors and bias. We also provided her with the report.13 Based on yesterday's ruling, Dr. Temm has now taken the14 step of evaluating based on this Court's ruling15 specifically what's in the bid protest. Based on16 yesterday's ruling, I think today's disclosure is timely17 and is not a surprise because it is in the bid protest.18 There's no prejudice.19 JUDGE MIHALSKY: The objection is overruled.20 MS. DESAI: Your Honor, if I may. There is21 no place where we can look to see the testimony that22 Dr. Temm is providing with respect to these issues, so23 with all due respect, it's sort of by ambush, we are24 now -- because of the ruling from yesterday she's gone25 back and her initial opinions, she's saying, were not --

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1 were not full, were not complete, and Magellan's lawyers 2 have asked her to go back and look at the report to 3 provide additional testimony and opinion with respect to 4 these issues that we have, frankly, no information about 5 at all. 6 MR. HONIG: The amount of documents Dr. Temm 7 has looked at, she testified at the beginning of this, 8 were in the thousands. For her to, essentially, revise 9 her opinion and disclose it the day of her testimony is10 wholly inappropriate.11 MS. PREMEAU: Are you reconsidering your12 ruling? I'll respond if I need to.13 JUDGE MIHALSKY: I'm not. And the reason is14 I did require disclosure in this matter. Disclosure is15 not generally required under the rules of procedure, the16 statutes for the Office of Administrative Hearings,17 although nondisclosure of information may form the basis18 for failure to admit in a Superior Court action. Although19 I'm not unsympathetic to the parties' position, I am not20 going to preclude Dr. Temm from testifying to deficiencies21 that were noted in the bid protest. The parties may22 explore her recently disclosed testimony in their23 cross-examination and the fact that she did not initially24 note these deficiencies in her report certainly is a25 proper grounds for cross-examination. However, I will

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1 allow the testimony. 2 You may proceed, Ms. Premeau. 3 MS. PREMEAU: Thank you, Your Honor. 4 BY MS. PREMEAU: 5 Q. So we're back at Joint 40, Bates-labeled 23. 6 Tell me your opinion regarding whether Magellan should 7 have lost 10 points based on the last bullet point. 8 A. Going back and looking at Magellan's response and 9 the way that this is actually described here as10 coordination for non-SMI populations, I did find evidence11 that each potential population was actually addressed and12 actually broken down by the individual types. So for13 example, it talked about the children's program, it talked14 about individuals with general mental health and substance15 abuse. So it did indicate coordination and, actually,16 technology that would be used in basically including17 physical healthcare coordination.18 Q. Is that comparable to what Magellan identifies on19 the subsequent page, continuing, Bates number 24?20 A. It's not really those two bullets specifically,21 but it's more the general description above that that22 actually those other populations are included in their23 descriptions.24 Q. Why was this item not included in your initial25 report?

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1 A. I think it was just an item that I missed as far 2 as looking at the individual scoring. 3 Q. Obviously you haven't agreed with Magellan on 4 every point in your report, correct? 5 A. That's correct. 6 Q. Next bullet item, "Magellan lost ten points 7 according to the Evaluation for 'RBHA employed staff 8 providing direct services to the member (integrated care 9 coordinator).'" Similar to what we were just talking10 about up there. Do you have an opinion as to whether11 Magellan should have received those 10 points?12 A. Yes, I did go back and look at this item in13 particular. This is one of the areas that it got a little14 confusing because this is an area that's actually shown on15 the scoring sheet in two separate line items. So by that16 I mean there's a deduction -- there's two deductions for17 basically the same item. So it is included in a general18 sense on another listing here, but it's also -- I looked19 at this and I would agree that the 10 points should not20 have been deducted.21 Q. And what are you referring to when you say it was22 listed in two separate places? Is that part of your23 Exhibit D?24 A. No, this would actually be the evaluation scoring25 sheets, so from the evaluators, if you would look at the

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1 Magellan scoring sheet, I think it's section 8.13 -- 2 Q. We're going to come back to this page. 3 A. Okay. 4 Q. We're going to bring up Joint Exhibit 33. Are 5 these the evaluation documents that Ridenour Hienton 6 provided to you to review in forming your opinion? 7 A. Yes. 8 Q. I would like you to do the math. Can you find 9 where within the evaluation documents you found a double10 deduction?11 A. So it would be -- it's citing section 8.13, pages12 69 and 85. And there's a 25-point deduction here for this13 weakness. And, again, it relates to the care management14 and care coordination. If you follow further down where15 I've got the cursor, 8.13, page 85, it's the same16 information here, another 10-point deduction. So this17 is -- so actually I addressed the 25-point deduction. I18 didn't separately call out this 10-point deduction.19 Q. That was one of Magellan's arguments in its bid20 protest was they got docked twice for the very same item.21 Is that correct?22 A. That's correct.23 Q. You've been able to corroborate that based on24 ADHS's scoring information?25 A. The information they provided on the evaluation

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1 sheet clearly shows that that's the same item listed 2 twice. 3 Q. Let's go back to the Magellan bid protest. The 4 next bullet point, "Magellan lost fifty points because the 5 reviewers concluded it did not 'adequately demonstrate 6 importance of . . . [physical health].'" Do you address 7 that in your report? 8 A. Yes, I do. 9 Q. Which page of Exhibit D, attached -- What am I10 going to call it? I will call it Exhibit D.11 A. So for Exhibit D, it would be page 7. Then the12 supporting documents are in tab 5.13 Q. So we've got supporting documents at tab 5 and14 that includes portions of Magellan's method of approach,15 correct?16 A. Correct.17 Q. Describe for us what you saw in Magellan's bid18 proposal and why you think that it was objectively scored19 wrong by being deducted 50 points for a lack of physical20 healthcare.21 A. So this is one, again, that it sort of -- if you22 refer back to those evaluation pages, it's a conglomerate23 of numerous items, so I looked at those items. I broke24 them down individually, looking for evidence one way or25 the other to substantiate or dispute those. So the first

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1 item was that there was one acute personnel on the 2 governance board, and I actually found evidence in the 3 response itself that shows there was actually four 4 individuals on their board. That's not even to kind of 5 dispute the issue of there's nowhere in the scope of work 6 that it defines that there be a specific number of acute 7 care individuals or acute personnel on the governance 8 board. 9 Q. It's just factually wrong. There is more than10 one person.11 A. That's correct.12 Q. What else did you see regarding the physical13 healthcare that you believe resulted in Magellan14 wrongfully being deducted 50 points?15 A. So the other example they gave was the oral16 health liaison indicating that there was no -- that the17 individual named lacked oral health experience. Again, if18 you look at the scope of work, that's not listed as a19 requirement. So, again, based on what's -- what the20 requirements are in the scope of work, they were penalized21 for something that was not there.22 Q. That's another example of what Magellan said, in23 its bid protest, generally speaking, "We're losing points24 when you didn't even ask us for things," correct?25 A. That's correct.

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1 Q. Anything else that you feel that Magellan had in 2 its bid proposal that supports your opinion that they were 3 wrongfully deducted 50 points? 4 A. So the other three items I looked at was the 5 organizational structure, the care coordination and the 6 limited behavioral health training for all physical 7 healthcare providers, and in each of those I found 8 specific pages that addressed those items. 9 Q. Anything else regarding those 50 points?10 A. Basically, in my opinion, I reversed the11 deduction and did not deduct 50.12 Q. Was there anything that ADHS said was part of13 their basis for deducting 50 points from Magellan, more14 than half the points needed for them to be the high scorer15 here -- is there anything that ADHS identified that you16 agree with?17 A. No.18 Q. And is this a subjective opinion of this or is19 this based upon the objective information within20 Magellan's proposal?21 A. It's based on what's actually in the proposal.22 And although those items were called out specifically,23 there's clear evidence throughout the report -- or, excuse24 me -- of the proposal that indicates that there has been25 an integration, in particular talking about the Integrated

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1 Health Home model with MIHS, so there's clear evidence 2 that there's integration. 3 Q. Now let me ask you a loaded question. We talked 4 about this earlier. If ADHS is working with Magellan 5 regarding the Integrated Health Home, ADHS can't consider 6 that unless it's in the bid proposal, right? 7 A. That's correct. 8 Q. But, in fact, the Integrated Health Home was 9 throughout Magellan's bid proposal, correct?10 A. It is described numerous spots within the11 proposal.12 Q. So certainly ADHS can't ignore something that13 they know about outside of the proposal if it's also14 contained within the proposal?15 A. That's correct.16 Q. Anything more on this 50-point deduction that we17 need to go through?18 A. Those were, I think, all the main details.19 Q. Were you able to substantiate that certain20 resumés had been submitted, things of that nature?21 A. Correct.22 Q. The next bullet point, at Joint 40, page 26,23 says, "Magellan did not receive any points for its24 proposed elimination of the duplicative administrative25 layer of the children's PNO." And they attach a

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1 reference. "Both Mercy and Cenpatico, however, received 2 five points for the same proposal and Mercy was lauded for 3 this 'exceptional fiscal and administrative approach.'" 4 Do you have an opinion on that one? 5 A. I did address that in my report on page 5 of 6 Exhibit D, and includes tab 4 of the supporting documents. 7 Q. Provide your explanation as to whether Magellan 8 was wrongfully deducted five points for something Mercy 9 also had in its proposal.10 A. Within the proposal itself, there was language11 that indicated that all outpatient providers would12 contract directly with the RBHA, that also it would13 eliminate a layer of involvement, which would expedite14 delivery of services. That it would allow, basically, the15 providers to manage one single contract and realize a16 decrease in administrative expenses. So basically, it17 provided evidence that it would eliminate the duplicative18 administrative layer that the children's PNO would -- has19 basically in place today. It would be eliminating that.20 So it's the same language -- I shouldn't say language --21 it's the same intent as what was awarded to the other22 bidders.23 Q. Objectively, do you think one evaluator could24 read the description Magellan provided and read the25 description that MMIC provided and think they're talking

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1 about different things? 2 A. No. 3 Q. So those are five points that Magellan -- those 4 were bonus points, if you will, correct? 5 A. Correct. 6 Q. And -- 7 A. So basically I would have awarded them five 8 points as well. 9 Q. What's fair for one is fair --10 A. Correct.11 Q. -- for another?12 A. If you're using a consistent evaluation criteria13 and awarding of points, it would be consistent.14 Q. The next part of Magellan talks about Magellan15 being "impermissibly deducted points for the same items16 multiple times." Now, you gave one example of that,17 correct?18 A. Correct.19 Q. Do you have an opinion as to whether the --20 Magellan alleges it was a total of 50 points for different21 areas. Did you look at this at all, either in your report22 or subsequently?23 A. I didn't add up the points as it related to that,24 but the example we talked about earlier was a clear25 example of there being the same item being counted twice.

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1 Q. Did you see that in other instances? 2 A. It's difficult to say that it was as black and 3 white as that one. I think there were inferences, but I 4 think that's probably the best example I could use. 5 Q. Let's talk about subsection B, "Magellan lost 6 twenty points for having contract deficiencies . . ." Did 7 you address that issue in your report? 8 A. I did. On page 14. 9 Q. Let's turn to page 14 of your report. Which tabs10 are going to support this particular item?11 A. That would be tab 10 which contains documentation12 from both MMIC as well as Magellan.13 JUDGE MIHALSKY: What page again was that?14 THE WITNESS: 14.15 JUDGE MIHALSKY: Okay.16 MS. PREMEAU: We apologize, Your Honor. We17 just realized you don't have number tabs like we're18 flipping through.19 JUDGE MIHALSKY: No. But I can find them.20 MS. KRAMER: Tab 10 is Bates number 263.21 We'll provide a list of these for you -- for everyone.22 MS. PREMEAU: Thank you, Meaghan.23 JUDGE MIHALSKY: Thank you.24 BY MS. PREMEAU:25 Q. So when I look at page 14 of Exhibit D, again

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1 you're not agreeing with Magellan that they get the whole 2 20 points back, are you? 3 A. No, I'm not. 4 Q. You're giving them 10 points back, though, 5 correct? 6 A. Correct. 7 Q. What's your objective reason for believing that 8 Magellan was improperly deducted at least 10 points? 9 A. Again, without having objective scoring criteria10 that would allow me to know how many points would be11 awarded or deducted, the best I could do --12 JUDGE MIHALSKY: Sustained.13 MR. RAY: Thank you.14 BY MS. PREMEAU:15 Q. Again, we're not going to mention --16 A. Sorry.17 Q. -- comparative scoring criteria.18 Let me ask you this, Dr. Temm. I'm going to19 try my best not to draw an objection here. What did you20 use to compare Magellan's scores in determining whether or21 not, you know, minus 50, plus 10, what did you look at to22 determine whether 50 was -- or, you know, whether23 something was a reasonable number of points specifically?24 A. The only thing I can look at was, actually, the25 other proposals and how they were scored. And if there

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1 was a comparison -- there were equal issues, making a 2 determination based on those issues. If it was more 3 egregious or more exceptional, being able to award points 4 from that perspective. 5 Q. Okay. So all of your opinions are based on 6 comparing what was in Magellan's proposal and what was in 7 MMIC's proposals, how points were allocated in addition to 8 the scope of work, the scoring guidelines, those other 9 documents, correct?10 A. That's correct.11 Q. Okay. So all of our answers will stay within the12 confines of that understanding that this is where your13 opinions are coming from. So we are back -- I apologize14 for that digression -- my digression there. But at15 page 14, the 20 points you deducted, you said it should16 have been 10. Give us your explanation as to why Magellan17 was improperly deducted 10 points for contract compliance.18 A. Although there are some compliance issues, that's19 why I did not take that down to a zero. They weren't as20 severe or egregious as some of the contract noncompliance21 issues that were identified in the MMIC response, which22 was deducted 15 points and since that was more severe, I23 would reduce that -- recognizing there's still24 noncompliance, I reduced it from 20 to 10.25 Q. When you say that one compliance issue was more

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1 egregious than another, are you talking objectively more 2 egregious? 3 A. Yes. 4 Q. Can you be specific as to -- 5 MR. RAY: Objection to the form. How can 6 could it be more objective? 7 MS. PREMEAU: I'm about to ask her if she 8 can give a specific example as to -- 9 JUDGE MIHALSKY: It's overruled for now.10 But --11 MS. PREMEAU: Thank you.12 JUDGE MIHALSKY: Same thing. I need to13 understand the answer.14 MS. PREMEAU: Absolutely.15 BY MS. PREMEAU:16 Q. Dr. Temm, was there a compliance issue that you17 saw in MMIC's -- or scoring that you compared to a18 compliance issue in Magellan's scoring?19 A. Yes.20 Q. And what -- what two compliance issues did you21 compare?22 A. In looking at the Magellan compliance issues,23 they were corrective actions. In the instance of MMIC,24 the noncompliance actually resulted in enrollment caps, if25 you will, that individuals could not be enrolled in

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1 certain programs. And in the managed care healthcare 2 industry, not being able to enroll an individual is much 3 more severe than saying "You have a noncompliance issue. 4 You need to report more timely your encounters." When 5 your enrollment has been stopped, that's a very severe 6 penalty versus an administrative fix, which is really what 7 I saw with the Magellan noncompliance issues. 8 Q. And so how many points did MMIC lose for its 9 noncompliance?10 A. 15 points.11 Q. 15 points. And Magellan lost more points,12 20 points, for administrative issues? Paperwork?13 A. A variety of issues, but yes.14 Q. The next bullet point, "Magellan was deducted15 five points for having a 'credit rating below A.'" Did16 you address that in your report?17 A. I did not.18 Q. Do you have an opinion as to whether Magellan19 should have been deducted five points for their credit20 rating?21 A. There's nothing in the scope of work or the22 additional RFP documents that indicate that there is a23 standard as far as what rating would be agreeable, so to24 say it should be five points, against what standard? I25 couldn't find a standard to say it should be a deduction.

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1 Q. And "The Evaluation deducts twenty points from 2 Magellan for failing to fully disclose legal 3 proceedings . . ." Is that in your report? 4 A. No, it's not. 5 Q. Is it something you looked at since yesterday? 6 A. I did. 7 Q. And were you able to find Magellan's disclosure 8 of legal proceedings? 9 A. I did.10 Q. And do you think there should have been any11 points deducted for that?12 A. No.13 Q. Did the RFP provide specific instructions as to14 how much information needed to be disclosed about lawsuits15 or regulatory actions?16 A. No, it did not.17 Q. So in your opinion Magellan disclosed what it18 needed to, correct?19 A. Correct.20 Q. Was it improper for them to have lost the21 20 points?22 A. Yes, it was.23 Q. Section C, Magellan raised the issue that24 Magellan's responses were often penalized more heavily25 than other offerors'. Most notably, MMIC for similar

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1 deficiencies. You've already provided some examples of 2 that, correct? 3 A. Correct. 4 Q. You agree with Magellan's opinion they were 5 scored more harshly for the same or similar items? 6 A. Correct. 7 Q. There's a bullet point, "While both MMIC and 8 Magellan were praised as having an 'exceptional crisis 9 response approach,' Mercy received five points but10 Magellan received only two points . . ." Did you look at11 that issue?12 A. I did.13 Q. And do you have an explanation as to how they14 both have an exceptional crisis response approach and get15 different points?16 A. No. I -- when I looked at it, it's -- quite17 honestly, it's almost identical in relationship to the18 strategies, the interventions and the technologies they19 both called out specifically in the crisis response20 approach.21 Q. The next one, Magellan and Mercy were both22 deducted points for missing financial documents. Mercy23 lost seven points, Magellan -- I'm sorry -- Mercy lost24 seven points for missing two documents, Magellan lost five25 for missing a single document. Did you look at that

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1 issue? 2 A. I did not. 3 Q. And the next bullet point regarding the DBHS CAPS 4 issue, have we addressed that already? 5 A. We have. That was, again, the same issue when we 6 were talking about the severity of the noncompliance. 7 Q. Certainly the ability to determine eligibility to 8 enroll people into your program, you regard that as a 9 critical skill that the RBHA needs to be able to perform?10 A. This item in particular was related to the11 sanctions that were taken, was actually a cap on12 enrollment, that enrollment could not go further --13 somebody could not be enrolled in a health plan and that14 would be a much more, in my opinion, severe penalty than15 just a noncompliance issue for more administrative16 functions.17 Q. They're essentially closing the door from anyone18 else getting in until problems are fixed, right?19 A. Correct.20 Q. The next bullet point, "As discussed in more21 detail above, Magellan lost fifty points for its 'Model of22 Care' approach which otherwise received 100% scoring when23 submitted to CMS for Dual Demo/DSNP." Have you addressed24 that today?25 A. I will say I think the 50 points were relating to

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1 the overall approach, that integrated approach, so we have 2 addressed it from that perspective. 3 Q. Next item references the relationship between 4 MMIC and universities and Magellan and universities. 5 Magellan didn't receive any bonus points, if you will, for 6 its work with the U of A College of Public Health. Are 7 you familiar with that program? 8 A. Yes, I am. 9 Q. Okay. Tell us what that program is.10 MR. RAY: Objection. To the extent that11 discussion is not contained in the offer, she's not12 allowed to testify to that. Her familiarity with that13 program is irrelevant.14 JUDGE MIHALSKY: Was it contained in the15 offer?16 MS. PREMEAU: Your Honor, I believe it was17 contained within the offer. Our bid protest outlines18 what's in the offer. I don't want to make a misstatement,19 but we can take a recess and make sure. I haven't seen an20 objection that this specific program --21 JUDGE MIHALSKY: I think it's a good time22 for a recess. And, again, as I ruled several times, it23 needs to be in the bid protest and to the extent that you24 are alleging that points were taken off, it's got to be in25 the offer. You can't just have something you alleged in

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1 the protest. So with that, we're going to take a 2 15-minute break. I have 5 minutes until 10 on my watch. 3 So we will be back on the record at 10 minutes after 10. 4 (A recess ensued.) 5 JUDGE MIHALSKY: Everyone, please sit down. 6 We're back on the record. Ms. Premeau, you 7 may proceed. 8 MS. PREMEAU: Thank you, Dr. Temm. 9 BY MS. PREMEAU:10 Q. Before we broke, we were at Joint Exhibit 40.11 This is not moving. Let's see. I apologize, just trying12 to figure out why the mouse -- it's kind of moving.13 (An off-the-record discussion ensued.)14 BY MS. PREMEAU:15 Q. All right. We will get back to where we were,16 Dr. Temm, I apologize.17 We were about to talk about, at Joint 40,18 page 28, the bullet point regarding University of19 Arizona's College of Public Health. And the question is20 whether or not that is contained in Magellan's bid21 proposal. I believe you know the answer to that, don't22 you?23 A. I do, yes. And, yes, it is in the response.24 Q. Is it also referenced in your report?25 A. Yes, it is. It's --

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1 Q. It's Exhibit D? Where would we find that at? 2 A. On Exhibit D, it's page 2 and also tab 1. 3 Q. Tell us about the experience that Magellan 4 included in its bid proposal regarding working with the 5 U of A. 6 A. So it actually described what they referred to as 7 the EcoHealth Community Model that they've built in 8 partnership with the U of A. 9 And actually, it's really taking the10 strategies and interventions that were recommended by the11 World Health Organization, as well as the Substance Abuse12 and Mental Health Service Administration or SAMHSA, as13 everyone will refer to, and really identifying hot spots14 as it relates to the community identifying sort of areas15 for success, areas that can have a significant impact on16 healthcare. Quite honestly, it's a very innovative model.17 Q. And when we look back at page 2 of Exhibit D, did18 Magellan get any bonus points for that?19 A. No, they did not.20 Q. And in your opinion, you believe Magellan should21 have gotten 5 extra points for strength, correct?22 A. Yes.23 Q. And how do you determine 5 points is the number24 that Magellan should have received objectively?25 A. In my mind, I think it was very comparable to the

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1 5 points that were awarded to MMIC for what they referred 2 to as "exceptional fiscal and administrative approach." 3 This is a very innovative approach. So at the bare 4 minimum, I would say 5 points should be awarded. 5 Q. The next bullet point talks about Magellan's six 6 years of experience in providing behavioral health 7 services to the state through the RBHA, the managed care 8 functions. 9 Again, we're clear that ADHS can't use its10 general knowledge of Magellan's prior experience as the11 RBHA, correct?12 A. That's correct. It would have to be what's13 submitted on the paper with the response.14 Q. In having reviewed Magellan's 2200-page proposal,15 do you have an opinion as to whether Magellan was treated16 objectively, fairly, for the work that it included in the17 proposal regarding to its work as the current RBHA?18 A. I would say it was not recognized or given credit19 for the experience it had with the specific population20 that's being addressed by this Request for Proposal.21 Q. And some of the work, as you said, is still the22 same work under the old RBHA as it will be under the new23 RBHA, the determining eligibility and the submitting --24 what are they called -- encounters?25 A. Encounters, yes.

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1 Q. The administrative side of it, we do have the 2 additional integrated physical and healthcare component, 3 correct? 4 A. Correct. And, actually, it went beyond just the 5 current experience, but also showed their experience with 6 their Integrated Health Home model. So it also addressed 7 integrated behavioral and physical health as it relates to 8 this specific population that'll be served, which would be 9 individuals with SMI.10 Q. Did Magellan go above -- How do I say this? Did11 Magellan just simply say, "Here's what we've done and12 that's good enough," or did they also provide information13 regarding additional methods of approach, if you will, for14 expanding the services for integrated behavior and15 healthcare to individuals with serious mental illness?16 A. It did explain the new model that was being17 proposed for the integrated services.18 Q. Did you get the impression that Magellan was19 looking to do business as usual as the new RBHA?20 A. No.21 Q. Based on the scoring errors that you have22 testified to, do you believe ADHS's score of Magellan's23 proposal was reasonable?24 A. No, I do not.25 Q. Based on those scoring errors that you've

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1 identified, do you believe ADHS's scores of Magellan's 2 proposal was consistent with the terms of the 3 solicitation? 4 A. No, I do not. 5 Q. Do you agree with Magellan's characterization of 6 the point scoring as subjective? 7 A. Yes. 8 Q. The errors that Magellan lost points for, 50 9 points, 25 points, 15 points, any of these scoring errors10 that you would describe as minor?11 A. Can you clarify that for me, what you mean by12 "minor"?13 Q. Sure. Like, you know, maybe it should have been14 1 point versus 2, or 50 versus 49. Like, you know,15 reasonable minds could differ. There's a minor deduction16 but -- you know, are those the type of errors you were17 consistently seeing throughout your report?18 A. No. The ones that actually I've addressed are19 ones that I felt were very objective, as far as looking at20 the scope of work, what the requirements were, looking at21 the actual proposal, black and white, is it there or is it22 not? So is it substantiated or not?23 Q. So if something could have gone either way, did24 you err on the side of excluding that from your report?25 A. I did.

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1 Q. Would you describe ADHS's scoring process as 2 arbitrary? 3 A. Yes. 4 Q. Based on the scoring errors that you've 5 identified, both through Magellan's proposal -- I mean, 6 Magellan's bid protest, Joint Exhibit 40, and your 7 Exhibit D to your report, were these scoring errors 8 prejudicial to Magellan? 9 MS. DESAI: Objection. That calls for a10 legal conclusion.11 MS. PREMEAU: I can rephrase.12 JUDGE MIHALSKY: Yes.13 BY MS. PREMEAU:14 Q. In your opinion, if these scoring errors had not15 occurred, would Magellan have scored more points than MMIC16 in the scoring of the RFPs?17 A. Yes.18 MS. PREMEAU: No further questions at this19 time.20 MR. HONIG: Your Honor, I'm going to be21 handling cross-examination for ADHS, and we're going to22 defer to MMIC and go second, if that's okay.23 JUDGE MIHALSKY: That's fine. And who will24 be handling the cross-examination for MMIC?25 MS. DESAI: Your Honor, Roopali Desai on

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1 behalf of MMIC. 2 JUDGE MIHALSKY: Okay. Go ahead. 3 4 CROSS-EXAMINATION 5 BY MS. DESAI: 6 Q. Good morning, Dr. Temm. 7 A. Morning. 8 Q. I might have missed this in the very beginning of 9 your testimony. Ms. Premeau asked you if you have a10 doctoral degree and you said you did. But I didn't11 catch -- maybe you said it and I missed it -- when it is12 that you received your doctoral degree?13 A. Actually, this summer. Actually, I completed all14 requirements in June of this year.15 Q. Have you ever worked for the State of Arizona or16 any state in any capacity relating to procurements or17 government contracts?18 A. No, I have not.19 Q. And your experience relating to government20 contracts or the procurement process, I believe you21 testified was with respect to serving as a consultant or22 working with private companies in bidding for those23 contracts. Is that correct?24 A. That's correct. But I also, as an employee early25 in my career working for some health plans, actually did

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1 procurements as well. 2 Q. But never as an employee of the government or the 3 state? 4 A. No. 5 Q. And your resume, which I believe has been 6 admitted as Magellan 52, talks about work that you did 7 with respect to an RFP for "acute and behavioral 8 healthcare integrated Medicaid services." Is that 9 referenced in your resume with respect to the proposal10 that's at issue -- or the bid that's at issue in this11 matter?12 A. And additional ones as well.13 Q. But you didn't work with Magellan on creating or14 developing their proposal --15 A. No.16 Q. -- for this solicitation?17 And in fact, you worked on a competing18 proposal to Magellan's proposal in this solicitation. Is19 that correct?20 A. That's correct.21 Q. Have you attended any government trainings on22 procurement issues?23 A. No -- outside of working with -- or actually24 attending the new procurement changes that are occurring25 here in Arizona, but I'm not sure I would consider that

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1 being procurement training from a government perspective. 2 Q. And have you gone to the Arizona Department of 3 Administration website, say in the past week, to review 4 any guidance or updates on procurement issues in the state 5 of Arizona? 6 A. DHS, no. ADOA, yes. 7 Q. Have you ever gone to the DHS website to review 8 any guidance or updates with respect to procurement 9 issues?10 A. Yes.11 Q. And when was the last time you did that?12 A. Probably while working on preparing my report, so13 I would say within the last 30 days.14 Q. What did you look at specifically?15 A. Oh, just various sections within the website16 itself, pulling up the procurement, noting if there was17 any changes on some of those home pages, or any call-out18 buttons related to that.19 Q. So are you looking with respect to this20 solicitation in particular? Is that what you're21 testifying about?22 A. No. Just in general.23 Q. Okay. And what did you find?24 A. Really just generic information. I mean, nothing25 in particular that I really can give you a specific of

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1 what I specifically saw. I mean, I didn't note any 2 changes that were -- that had any great meaning to me. 3 Q. You testified earlier with respect to a success 4 rate for bids that you drafted from A to Z. 5 A. Correct. 6 Q. And I understand that to mean that you were hired 7 to draft the entire proposal and not just sections of it. 8 Is that right? 9 A. That's correct.10 Q. Okay. And with respect to proposals that you11 drafted from A to Z, from which you testified about your12 success rate, how many proposals are we talking about13 here?14 A. On that, probably about 14, 15.15 Q. And did you work on the proposal for United in16 this case? Were you the drafter of the proposal from17 A to Z?18 A. No.19 Q. You were retained by Magellan in late July. Is20 that right?21 A. No. I've not been retained by Magellan.22 Q. You were retained by the Ridenour law firm. Is23 that correct?24 A. That's correct.25 Q. Okay. I'm going to refer to Magellan --

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1 A. Okay. 2 Q. -- sort of broadly to include their lawyers. 3 So in this case, you were retained by 4 Magellan or the Ridenour law firm in late July. Is that 5 correct? 6 A. I believe so. 7 Q. And that was after they filed their bid protest. 8 Is that correct? 9 A. Yes.10 Q. Were you ever contacted by Magellan earlier to11 assist with developing their bid protest?12 A. No.13 Q. But you were hired by United to draft or assist14 with their bid protest. Is that right?15 A. That's correct.16 Q. And were you asked to help with that bid protest17 within 10 days after the time that the award was made in18 this particular solicitation?19 A. Yes.20 Q. And so Magellan could have reached out to you21 within that same period of time if it was interested in22 having you assist with the bid protest. Is that right?23 A. I would say yes.24 Q. But they didn't. Is that correct?25 A. Correct.

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1 Q. So you did not help Magellan in any way formulate 2 the specific scoring objections that are included in their 3 bid protest in this matter. Is that right? 4 A. Correct, I did not help them. 5 Q. You testified earlier to having -- and I think 6 this was Ms. Premeau's words -- a blind approach, so to 7 speak, to reviewing documents when preparing your report 8 in this -- in this hearing -- for this hearing. Is that 9 right?10 A. That's correct.11 Q. Did you receive documents from Magellan's counsel12 to review in this case?13 A. Yes.14 Q. Did you, independently of those documents that15 you received, go onto the Procure Arizona or AZ16 procurement site, the website, and look at all of the17 documents that you had reviewed in preparing your letter?18 A. From the ProcureAZ site itself?19 Q. Yes.20 A. No.21 Q. And you had already worked on United's bid22 protest by the time that you looked at documents in this23 case?24 A. Correct.25 Q. You also testified earlier that you looked at

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1 MMIC's proposal. Do you know if you looked at the entire 2 proposal that MMIC submitted from A to Z? 3 A. I don't know that for a fact. 4 Q. Would it help you to look back at your list of 5 documents that you produced -- or provided, stating which 6 documents you looked at? 7 A. I will say that I looked at the documents that 8 were provided by Ridenour. And I did -- it had the -- 9 what I would deem to be the entire response, just based on10 the page numbers that were contained within the PDF file11 that I received. So there was actually two files.12 Q. So I'm not quite understanding your answer.13 Are you able to confirm that you looked at14 MMIC's entire proposal from A to Z?15 A. I can say that looking at the page numbers in the16 PDF file that I received, it was complete, as far as I17 know. But I did not compare that to the ProcureAZ site.18 Q. So you just looked at the documents that you19 received from Magellan's lawyers?20 A. Correct.21 MS. DESAI: Bear with me for just a second.22 I'm trying to scroll through this long list of exhibits to23 find one.24 BY MS. DESAI:25 Q. I've pulled up what's numbered as MMIC 56. Can

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1 you see that on the screen, Dr. Temm? 2 A. Yes, I do. 3 Q. There's a list of documents here that is a list 4 that I believe you created and provided us. Is that 5 right? 6 A. That's correct. 7 Q. And it shows here that with respect to the 8 document you looked at from Magellan's proposal, there are 9 a number of documents from 1 to 19. Is that correct?10 A. That's correct.11 Q. And with respect to the documents we looked at12 from MMIC's proposal, it just shows that you looked at13 attachments 5 and 6 binder and appendices attachments14 1 through 7. Is that right?15 A. That's correct. Well, there's also other MMIC's16 material that was provided.17 Q. Where is that included on this list?18 A. Right below that where it says "other MMIC19 materials."20 Q. Okay. How -- Are those portions of the proposal21 that MMIC submitted?22 A. No.23 Q. So with respect to MMIC's proposal, you looked at24 just numbers 1 and 2 under subsection B. Is that correct?25 A. Correct.

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1 Q. Do you know if there's anything from the MMIC 2 proposal that you did not review? 3 A. No. 4 Q. And you wouldn't know that because you didn't go 5 to the Procure Arizona site to see all the documents that 6 were submitted. Is that correct? 7 A. That's correct. 8 Q. You testified that one of the ways you rescored 9 Magellan's proposal was by preparing Magellan's responses10 to MMIC's responses. Is that right?11 A. Comparing the scoring, yes, and then looking at12 the details, correct.13 Q. I'm going to pull up for you what's -- I think14 been -- it's Joint 33.15 MS. DESAI: I don't have somebody doing this16 for me like Andy did yesterday.17 MS. PREMEAU: I think you've got three guys18 sitting right there next to you.19 MR. GORDON: That's the problem.20 BY MS. DESAI:21 Q. Okay. So here we are. I am showing you what's22 been marked as Joint Exhibit 33. And page 62 is the23 beginning of what's the Evaluation Committee Guidelines.24 Did you look at this in your review of the documents?25 A. Yes, I did.

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1 Q. And on page 63, I'm going to point you to 2 subsection 7. Do you see that where it says "Evaluation 3 Committee Deliverables, Consensus Scoring"? 4 A. Yes. 5 Q. Okay. Are you aware of the fact that the 6 evaluation committee guidelines for this particular 7 solicitation specifically state that points are determined 8 by evaluating each proposal on its own merit and not by 9 making a comparison with other proposals?10 A. Yes.11 Q. Did you rescore MMIC's proposal when you rescored12 Magellan's proposal with respect to your report for this13 hearing?14 A. No, I did not.15 Q. So your opinion that's contained in Exhibit D16 regarding the revised points that Magellan should use17 based on your own opinion doesn't extend also to a18 rescoring of MMIC's proposal?19 A. That's correct.20 Q. Did you ever object to any of the scoring21 provisions, including the one that I just read to you from22 paragraph 7, early on in this solicitation?23 A. I wasn't --24 MS. PREMEAU: Excuse me, Your Honor. I'm25 not sure if it's an objection or clarification. Do they

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1 want to get into the United bid proposal that they just 2 argued is inadmissible? Because if they want to open the 3 door, I'm happy to go back to that. 4 MS. DESAI: I'm specifically asking with 5 respect to this provision here that Ms. Temm -- or 6 Dr. Temm -- testified that she reviewed. I'm wondering if 7 she ever made an objection to this issue? 8 JUDGE MIHALSKY: If it's an objection, it's 9 overruled.10 MS. PREMEAU: Okay. That's fine.11 BY MS. DESAI:12 Q. Dr. Temm, do you understand my question?13 A. Can you repeat it again?14 Q. Sure. The provision here, with respect to the15 Evaluation Committee Guidelines that you reviewed, did you16 ever make an objection with respect to this scoring17 guideline?18 A. First, let me clarify that this document only19 became available post-contract award. And second, not as20 a party to the actual bidding process, myself, my firm, we21 would not make an objection, but we would advise a client22 to do so if we found that it was inappropriate.23 But, however, since this was post-award,24 this would be something that would be incorporated into, I25 would assume, a bid protest.

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1 Q. You testified earlier about the ALTCS contract. 2 Is that right? 3 A. Yes. 4 Q. I might have misheard your testimony, but I 5 believe you made some comment about the provider network 6 by MercyCare Plan including 15 behavioral health 7 providers. Is that correct? 8 A. No. 9 Q. Can you clarify your testimony with respect to10 the ALTCS contract?11 A. I was talking about basically -- so the Arizona12 Long Term Care System, so the ALTCS program -- that it is13 an integrated offering for the physically disabled and the14 elderly populations who are, quote, at risk of15 institutionalization.16 So it is integrated in that it contains17 behavioral health and physical health. I was making the18 distinction that that behavioral health network or19 delivery system is much smaller than what RBHA for20 Maricopa County would encompass, that there's many more21 types of providers that would be involved because22 obviously it's a much larger offering.23 When we're talking about the ALTCS24 population -- and this is a rough estimate -- I think for25 Maricopa, I want to say it's like 10- to 12,000

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1 individuals versus what you would normal -- and that's 2 divided among three of the ALTCS program contractors 3 within Maricopa County. And the RBHA would have much 4 larger, obviously, needs. So you would be serving the 5 children's population, general mental health, substance 6 abuse, as well as individuals with serious mental illness. 7 Q. So you wouldn't disagree with the fact that, for 8 the ALTCS provider network, there's actually a significant 9 number of behavioral health providers serving ALTCS10 clients?11 A. Oh, absolu- -- I wouldn't say they're -- I mean,12 we know that there's a very limited number of behavioral13 health providers within Maricopa County and within the14 state of Arizona. I wouldn't say it's an expansive15 network. But --16 Q. There are more than 1300 providers?17 A. That's not very expansive. I mean, most health18 plans today, even in the AHCCCS arena, have probably19 upwards of 2- and 3,000 just primary care providers.20 Q. Okay. I'm going to turn your attention to the21 Exhibit D that you spent some time testifying about this22 morning. I'm trying to figure out the best way to do this23 so that you have all the information in front of you.24 Let me just back up one second, actually.25 When we were talking about the documents

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1 that you reviewed, did you look at the CPO's response in 2 this -- in response to Magellan's bid protest in this 3 solicitation matter? 4 A. I read it probably last Sunday for the first 5 time. 6 Q. So you didn't review the CPO's findings with 7 respect to Magellan's bid protest when conducting your own 8 consideration of the evaluation committee's scoring? 9 A. That's correct.10 Q. Do you know that the evaluation committee that11 scored the proposals for this solicitation was comprised12 of subject matter experts from ADHS and AHCCCS?13 A. Yes.14 MS. PREMEAU: Object.15 THE WITNESS: Sorry.16 MS. PREMEAU: I was going to object to form17 as to what is --18 JUDGE MIHALSKY: Too late.19 MS. PREMEAU: -- their substantial20 expertise.21 BY MS. DESAI:22 Q. Do you believe that your individual review of23 Magellan's proposal and your rescoring of the responses is24 more objective and accurate than that of the evaluation25 committee?

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1 A. I think it's objective. 2 Q. That wasn't my question. 3 Do you believe that your rescoring of the 4 response is more objective and more accurate than that of 5 the evaluation committee, that you just testified you know 6 is comprised of subject matter experts? 7 A. Yes. 8 Q. And are you aware of the fact that your scoring 9 analysis in Exhibit D includes scoring errors that weren't10 actually raised by Magellan in its bid protest?11 A. I am now, yes.12 Q. In fact, I want to ask you just to clarify,13 because there aren't numbers related to the bid protest14 claims for Magellan and so it's kind of confusing to go15 back and forth.16 So I want to ask you in particular, in your17 Exhibit D, tab 2, which is on page 3 of Exhibit D -- Did18 you follow all of that?19 A. I got it.20 Q. Can you point me to where this particular issue,21 with respect to the points that you're talking about, was22 raised in Magellan's initial bid protest?23 A. I can't actually point to a specific item, other24 than it does get to a number of the items that talk about25 the integration, as well as the acute care experience.

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1 Basically, it's talking about the integration not being as 2 comprehensive. Without having the scoring sheet in front 3 of me, I'm not sure what the exact evaluation finding was. 4 Q. If you need to look at the scoring sheet, we can 5 do that. It's Joint 33. 6 And the reason I'm asking this question is 7 because you didn't do a rescoring just on general 8 information. In fact, you yourself testified that it 9 would have been improper for the evaluation committee to10 just generally consider things in the proposal if they11 weren't tying it to a specific response. Is that correct?12 A. If they weren't tying it to the scope of work,13 correct.14 Q. Okay. So your evaluation here on page 3, tab 2,15 relates to a specific section, 1.3, of the scope of work.16 Is that right?17 A. Correct.18 Q. Okay. So what I'm trying to figure out is if you19 can point me to where that issue was raised in the initial20 bid protest, because I don't think it's in there.21 MR. RAY: Sorry, Judge, we're just laughing22 at the descending stair steps.23 MR. GORDON: I have no idea what he's24 talking about.25 MR. HONIG: Really loud walking down the

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1 stairs. 2 JUDGE MIHALSKY: Oh, well, we do have a sign 3 out there. 4 MR. RAY: We closed the door. 5 JUDGE MIHALSKY: Okay. 6 THE WITNESS: I don't know that I see one 7 that's a one-to-one. 8 MS. DESAI: Okay. 9 THE WITNESS: By that, I mean that it's10 raised specifically. As I said, it gets to the11 comprehensive integrated approach.12 BY MS. DESAI:13 Q. We went through your -- Ms. Premeau actually went14 through with you each of the specific bullet points in15 Magellan's bid protest and asked you to tell us where, in16 your Exhibit D, that was found. We went though that17 exercise. We never -- you never referred to tab 2.18 So I just wanted to make sure that the fact19 that you didn't refer to tab 2, and you didn't tie it back20 to a bullet point in the initial bid protest, and now21 you're confirming for me that you can't find a 1-to-122 connection. Is that correct?23 A. That's correct.24 Q. Okay. And can you turn to tab 6, which is page 925 of your Exhibit D? This is also a particular tab that you

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1 didn't reference when you went through Magellan's initial 2 bid protest. 3 A. Actually, this is the one that it gets a little 4 clouded because it's the same issue that's raised twice on 5 the evaluation score sheet. So it relates to section 6 8.13. 7 So originally, in the evaluation -- when I 8 looked at the scoring sheet -- if I can move this down for 9 you -- this is where there's two items 8.13, page 69 and10 85 listed here, which was the 25 points, which is listed11 for my tab 6. It's also listed here 8.13, page 85 with a12 10-point deduction.13 Q. Let's be clear here for a second. Because I want14 to be clear if we're talking about the Method of Approach15 section or the Experience and Expertise section.16 A. This is Method of Approach.17 Q. Okay. So we need to go to Method of Approach18 here. You're referring to this right here? Do you see19 where my cursor is?20 A. No. I'm referring to the section that was listed21 as a weakness. So these were the areas where the points22 were deducted.23 Q. Okay. And then you're looking down here at the24 two separate -- Point me to the first one.25 A. The first one is right here. So here's 8.13.

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1 Q. Okay. 2 A. This is the one -- this is on the care 3 coordination case management. This is the 25-point 4 deduction, which is what my report addressed. There's a 5 second scoring for the same item 8.13, page 85, that's a 6 10-point, which is addressed in the Magellan protest. 7 Q. Okay. So I know that you're referring to this -- 8 or Ms. Premeau referred to this as a double deduction. 9 Have you looked back to see whether or not the scope of10 work actually required two separate issues and whether11 these were -- these score -- these points were deducted12 for two separate issues and not the same issue?13 For example, the first time the deduction14 came up, it related to a lack of description for care15 management and care coordination versus the deduction16 separately for page 85 related to another requirement for17 description that it gave violated subsection 11? Did you18 look at that?19 A. I did. But because there's no criteria given to20 determine the 25 points versus the 10 points, I can't21 make --22 Q. I'm not going to -- I'm going to object to that23 response. We're not talking about the specific criteria.24 I want to know whether you looked at the25 scope of work?

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1 A. Yes, I did. 2 JUDGE MIHALSKY: The objection is sustained. 3 You can't talk about criteria. 4 BY MS. DESAI: 5 Q. Okay. So it's your testimony, Dr. Temm, that 6 your page number 9, tab 6, relates generally to a number 7 of bullets, but you can't tie me back to a specific bullet 8 in the initial bid protest. Is that right? 9 A. No, it's on page 18 of the Magellan bid protest.10 Q. Which one is it? Can you show me?11 A. It's the one that says Magellan lost 10 points12 according to the evaluation for RBHA employed staff.13 Q. Okay. So --14 A. Because, again, this is -- this is 8.13.15 Q. Okay. Can you tell me which of your tabs --16 which of your pages of Exhibit D relate to this particular17 issue?18 A. Because they -- it doesn't call out this19 particular -- How do I say it?20 It doesn't call out the specific issue on21 the 10-point deduction, it calls it out on the 25-point22 deduction. So it's the same issue though regarding care23 coordination and care management, 8.13.24 Q. Okay. Can you turn to page 10 of your Exhibit D,25 which is tab 7? This was another tab that you did not

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1 identify as being connected to any particular claim of 2 scoring error in the bid protest. Can you point me to the 3 place where this exists, if it does? You didn't 4 previously testify that it did, so I just want to clarify. 5 A. I don't think it does. 6 Q. Okay. Now I want you to turn to exhibit -- the 7 same -- the same Exhibit D to your letter, on page 16 -- 8 I'm sorry. 9 Actually, before I do that, let me address10 another point. Go all the way back, actually, to the11 beginning. So page 2, which is tab 1. You testified12 earlier that this particular response with respect to the13 EcoHealth Community Model was given zero points. Is that14 correct?15 A. That's correct.16 Q. On the screen in front of you is the scoring17 sheet. And I just want to point out here with respect to18 the exceptional community health approach using the19 EcoHealth model, it shows here that, in fact, Magellan was20 given 3 points. Do you see that? Right here?21 A. Correct.22 Q. So this would, in fact, be an error in your23 report that Magellan was given zero points for this model.24 Is that correct?25 A. It's actually in two different sections. So just

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1 as we were talking about it's in -- this one that's 2 related here to 4.9 is where the 3 points are given. The 3 one in my report is for section 1.3. 4 Q. And where is that? Can you point me to that? 5 A. This is the issue of it's not on here and it 6 should be recognized as an exceptional approach. 7 Q. Okay. But, in fact, Magellan was given points 8 with respect to its EcoHealth Community Model? 9 A. Not for section 1.3.10 Q. Your specific argument is that with respect to11 section 1.3, the EcoHealth Community Model was not12 considered. Is that right?13 A. That's correct.14 Q. Okay. Can you point me to the specific tab where15 that is so we can look at it?16 A. It would be in tab 1.17 Q. And what's the Bates number for that? Do you18 have it in front of you?19 MS. KRAMER: 71.20 BY MS. DESAI:21 Q. I want to withdraw this question. Let me come22 back to this. Because I want to look at your tabs. But23 let me just address another quick question first.24 Dr. Temm, now let's go back to tab 12. I'm25 sorry to jump around so much.

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1 A. That's all right. 2 Q. I want to try to stay in your Exhibit D before 3 moving to another document first, so . . . 4 JUDGE MIHALSKY: Tab 12? 5 MS. DESAI: Yes, page 16, tab 12 of 6 Exhibit D. 7 Am I in the right document here? 8 BY MS. DESAI: 9 Q. Do you have your report in front of you,10 Dr. Temm?11 A. I do.12 Q. Now it's on the screen too, so that's helpful.13 All right. With a number of these scoring14 point issues that you looked at, you testified that you15 did not agree completely with the number of points that16 Magellan alleged in its bid protest should have been17 awarded to them. Is that correct?18 A. That's correct.19 Q. And this is an example of one of those that you20 testified that you, in fact, would agree with the 5-point21 deduction for one of these professionals. Is that22 correct?23 A. That's correct.24 Q. The same is true with respect to the provision on25 page -- or the scoring issue on page 13 of your report,

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1 tab 9. 2 Here the original points deducted were 25, 3 and you agree with the CPO that 20 points of those 25 4 should be deducted. Is that right? 5 A. That's right. 6 Q. So there are matters where you agree with 7 Magellan and there are matters that you disagree with 8 Magellan. Is that right? 9 A. That's correct.10 Q. And there are matters where you agree with the11 evaluation committee's scoring and there are matters where12 you disagree with their scoring. Is that correct?13 A. That's correct.14 Q. So all this is just -- goes to show that it's a15 matter of judgment, correct?16 A. True.17 Q. You testified that there are a number of issues18 that you had not included in your report, but today you're19 able to testify that you agree with the errors alleged in20 the bid protest. Is that correct?21 A. That's correct.22 Q. You spoke to Magellan's lawyers last night about23 the Court's ruling about the admissibility of your report,24 and then you went back and you looked at Magellan's25 scoring claims in its bid protest and found new errors.

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1 Is that correct? 2 A. That's correct. 3 MS. DESAI: No further questions. 4 JUDGE MIHALSKY: Mr. Honig, go ahead. 5 6 CROSS-EXAMINATION 7 BY MR. HONIG: 8 Q. Ms. Temm, I'm Greg Honig. I represent the 9 Department of Health Services.10 When you were asked about your procurement11 work, you said "we." You referred to we did work in this12 area or that area. Are you referring to your firm Temm &13 Associates?14 A. Correct.15 Q. Okay. If I ask you any questions about the work16 that you do, can you please make a distinction for me17 between work that your firm was generally retained for and18 work that you personally were involved in?19 A. Absolutely.20 Q. You answered earlier that you had been21 involved -- directly involved in drafting, from beginning22 to end, 14 proposals?23 A. Yes.24 Q. Responses to requests for proposals?25 A. Approximately, uh-huh.

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1 Q. And that was from start to finish for those 2 responses, correct? 3 A. That's correct. 4 Q. And was that individually or was that your firm 5 was retained to be involved in those -- the drafting 6 process from beginning to end? 7 A. It would always be contracting through the firm, 8 but I personally was involved in all of those. 9 Q. Were you the primary person at your firm involved10 in those 14 matters?11 A. Yes.12 Q. And of those 14 matters, how many were in13 Arizona?14 A. I'd -- this is rough -- I would say at least six,15 if not seven.16 Q. And can you recall, off the top of your head, if17 you could briefly give me a sentence or two about each18 matter? Describe what they were for.19 A. Most of them would be in relationship to probably20 procurements related to AHCCCS or DES, DDE.21 Q. Anything else that you can think of that it might22 have related to?23 A. No. Those would be primarily.24 Q. So of the six or seven that you believe were in25 Arizona, how many of those -- if you could approximate for

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1 me -- related to AHCCCS? 2 A. Probably the majority. 3 Q. Five? 4 A. Probably. 5 Q. And outside of the scope of your retention to 6 assist an entity in drafting a proposal from beginning to 7 end, have you also been retained in a capacity as an 8 expert witness similar to what you are here today? 9 A. Called out specifically as an expert witness with10 a separate engagement for that, no. But included in11 overall kind of start to finish, yes.12 Q. So in this specific matter related to Magellan,13 you did not help them draft the proposal?14 A. That's correct.15 Q. You were retained exclusively -- and I know it's16 through Ridenour -- but you were retained exclusively to17 comment on scoring issues, correct?18 A. That's correct.19 Q. And what you're telling me is that, your prior20 experience, you have not been involved as an expert to21 testify in a similar capacity in other matters, correct?22 A. I have, but not procured as such. So basically23 it would be part of kind of the start to finish24 contracting if there was a bid protest included in that.25 Q. Right.

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1 Based on your involvement in this case, as 2 an expert on scoring issues under the procurement code, 3 would you consider yourself to be an expert on these 4 issues? 5 A. I would say yes. 6 Q. You listed all the materials you reviewed 7 regarding your opinion here today in your written report, 8 correct? 9 A. Correct.10 Q. You're aware you did not list any sections of the11 procurement code in your report, correct?12 A. Correct.13 Q. And you're aware that your report also does not14 include any specific mention of specific violations of15 sections of the procurement code, correct?16 A. Correct.17 Q. You testified that your involvement, in some18 respects with this RFP, began a year before it was made19 public, correct?20 A. Correct.21 Q. And just to be clear, it's your involvement22 personally, not just your firm's involvement, correct?23 A. That's correct.24 Q. And you've already testified that you were25 retained by United, right?

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1 A. No. 2 Q. You were not retained by United? 3 Were you retained by United in a similar 4 capacity how you were retained by Magellan in this matter? 5 A. I'm sorry. Can you ask your first question over 6 again? 7 Q. Sure. You were retained by United to assist them 8 in putting together their RFP proposal, correct? 9 A. Correct. Correct. I'm sorry, I misunderstood10 you the first time.11 Q. Sure. It was phrased poorly. Sorry about that.12 So when you refer to your involvement13 beginning a year before the RFP was made public, was14 that -- did that process start through your retention by15 United?16 A. Yes.17 Q. And again, your retention by United was in the18 capacity that you mentioned earlier, in the approximate 1419 other matters that you were involved with from beginning20 to end? I know you didn't personally draft it in its21 entirety, but you were essentially their consultant,22 correct?23 A. Say that again, because I think --24 Q. Right.25 A. -- you misspoke.

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1 Q. You didn't draft United's response to the RFP, 2 correct? 3 A. That's correct. 4 Q. You were their consultant in that capacity, 5 correct? 6 A. Correct. 7 Q. I'm not going to ask any substantive issues. I 8 understand there's a confidentiality concern. 9 You mentioned you or your company had a10 92 percent success rate in responding to RFPs, correct?11 A. From start to finish, yes.12 Q. And it concerns those 14 matters that we just13 discussed, correct?14 A. Correct.15 Q. So was -- were there one or two? How many16 exactly that you were not -- your client was not the17 successful bidder?18 A. There was I think maybe one or two. I'm not sure19 how . . .20 Q. How many of those 14 were in Arizona?21 A. You asked me that --22 Q. Six or seven?23 A. Yeah. You asked me that previously.24 Q. Was one of those six or seven the unsuccessful25 bidder? One of the six or seven in Arizona, were they

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1 the -- were they the unsuccessful bidder or was it in 2 another jurisdiction? 3 A. Who is "they"? I'm sorry, I'm not following you. 4 Q. You said there were one or two unsuccessful 5 bidders out of the 14 that you drafted from beginning to 6 end, correct? 7 A. Correct. 8 Q. Was that in Arizona or outside of Arizona? 9 A. I think -- You know what? I think those were10 all outside of Arizona.11 Q. You testified earlier, at the beginning of your12 testimony, that you did a blind review of the RFP and13 Magellan's submission in response to the RFP, correct?14 A. Correct.15 Q. But then you later testified, toward the end of16 your testimony, that you determined the corrected points17 that Magellan should have received were attributable to18 Magellan because of comparisons to United and MMIC's19 proposal?20 A. No.21 Q. You didn't testify to that?22 A. No.23 Q. So the points you -- the points you testified24 earlier to that Magellan should have received, that was a25 blind review? That was without considering MMIC's

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1 proposal. Is that right? 2 A. No. It was looking at the actual scoring as far 3 as how points were awarded or not awarded. 4 Q. Right. But as they related to MMIC and United in 5 addition to Magellan, correct? 6 A. Only MMIC. 7 Q. Only MMIC. 8 Okay. Couple quick questions on the bidder 9 conference from November. You attended that, correct?10 A. Yes, I did.11 Q. And from your testimony earlier, you attended it12 in your capacity as an employee or contractor of Magellan,13 correct?14 A. As an independent contractor, yes.15 Q. You're aware of the purpose of these types of16 meetings with the state?17 A. Yes.18 Q. For interested parties, potential contractors, to19 ask any questions, seek any answers?20 JUDGE MIHALSKY: I think the witness may21 have misspoke. And --22 MR. HONIG: About which answer?23 JUDGE MIHALSKY: About she responded that24 she attended the November 2012 bidders' conference as an25 independent contractor of Magellan.

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1 MR. HONIG: For United. 2 THE WITNESS: Sorry. I did say independent 3 contractor. 4 BY MR. HONIG: 5 Q. For United, correct? 6 A. Yes. 7 Q. Not Magellan? 8 A. Yeah. I mean, I . . . 9 JUDGE MIHALSKY: Thank you.10 MR. HONIG: Sorry about that, Your Honor.11 BY MR. HONIG:12 Q. You're aware that the individuals who attended13 that meeting had an opportunity to ask questions to try14 and obtain clarification regarding any issues they might15 have?16 A. Yes.17 Q. Did you personally ask any questions regarding18 the RFP proposal -- the RFP or a potential response to19 that RFP?20 A. No, I did not.21 MR. HONIG: I have nothing further.22 JUDGE MIHALSKY: Thank you.23 Mr. Johnston, do you have any questions?24 MR. JOHNSTON: If I might, Your Honor, just25 a couple.

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1 CROSS-EXAMINATION 2 BY MR. JOHNSTON: 3 Q. Dr. Temm, we've met before? 4 A. Absolutely. 5 Q. You began your testimony, in response to 6 Ms. Premeau, talking about your work for United and its 7 proposal and how that helped you to be knowledgeable about 8 the RFP and your ability to assess scoring of the bids, 9 correct?10 A. Correct.11 Q. And then as I understand it, Magellan asked you12 to perform an analysis similar to what you had done for13 United.14 A. As it related to the bid protest, yes.15 Q. Right. And I think you said, in fact, you did16 exactly the same thing for Magellan as you had for United,17 correct?18 A. Related to the bid protest, yes.19 Q. And that was this blind review of the objective20 information?21 A. Correct.22 Q. Based on everything you know, is it your23 testimony that Magellan is the bidder that should get the24 highest score on this RFP?25 A. I'm not sure that that's actually my testimony.

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1 I think the reality is that through the 2 evaluations that it became clear that it -- that there are 3 errors in the report, in the scoring, and that it's 4 probably something that should be re-reviewed because 5 there is multiple errors in the evaluations themselves as 6 it relates to the eventual scoring. 7 Q. As you sit here today, based on everything you 8 know, who should get the highest score on this RFP? 9 A. Without developing an objective criteria on which10 to evaluate it, it's difficult for me to say that.11 Q. So you can't say, for example, that Magellan12 should get a higher score than United?13 A. No.14 Q. Am I correct that you have not rescored MMIC in15 the same way that you have rescored Magellan?16 A. That's correct.17 MR. JOHNSTON: I have no other questions.18 JUDGE MIHALSKY: Ms. Premeau?19 MS. PREMEAU: Thank you.2021 REDIRECT EXAMINATION22 BY MS. PREMEAU:23 Q. Dr. Temm, just a few more questions for you.24 Through your Exhibit D, you were able to25 corroborate many of the scoring errors that Magellan also

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1 found, correct? 2 A. Correct. 3 Q. There were questions about whether you had, 4 quote, all of MMIC's proposal when you reviewed it, and 5 the attachment showed that you had attachments 5 and 6. 6 Ballpark, how many pages are attachments 5 and 6 of MMIC's 7 proposal? 8 A. Thousands. 9 Q. And do attachments 5 and 6 have any special10 significance, in your mind, as it relates to the bid11 proposals and the -- the proposals that were submitted by12 the bidders?13 A. That would be the entire section that would be14 submitted. Section -- or attachment 5 related to15 Expertise and Experience and 6 related to Method of16 Approach.17 Q. And that's what they're being scored on, correct?18 A. Correct.19 Q. So you didn't look at something like maybe20 attachment 1, did they sign promising to abide by, you21 know, the contract if they really were awarded the RBHA,22 right?23 A. I didn't look at the cover sheet, that's true.24 Q. You testified on direct that you felt like you25 had sufficient information that you were able to form an

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1 objective opinion as to scoring errors that were biased to 2 Magellan, correct? 3 A. That's correct. 4 Q. Obviously, you couldn't do a consensus scoring 5 with yourself, correct? 6 A. No. 7 Q. Do you know of any other way that you could have 8 objectively evaluated the scoring that ADHS did for 9 Magellan, other than comparing the winning bidder and10 the -- and Magellan's scores?11 A. No.12 Q. And that's the approach you used, content,13 correct?14 A. Correct.15 Q. And so the fact that you don't necessarily agree16 with everything Magellan says, does that mean that your17 opinion has -- is completely subjective and arbitrary?18 A. No.19 Q. Does it mean Magellan's opinions on scoring are20 completely subjective and arbitrary?21 A. No.22 Q. But you were able to find specific documented23 instances where ADHS deducted points for information that24 was specifically contained within Magellan's proposal,25 correct?

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1 MS. DESAI: Objection, Your Honor, leading 2 the witness. 3 JUDGE MIHALSKY: Sustained. 4 BY MS. PREMEAU: 5 Q. When you gave opinions regarding what you 6 testified were objective scoring errors, did you support 7 your opinions with specific documents referenced in 8 Magellan's proposal? 9 MS. DESAI: Objection. Your Honor, I would10 ask that Ms. Premeau specifically reference which section11 she's talking about. Because we pointed out Dr. Temm12 testified there are certain areas where there isn't a13 1-to-1 correlation, so to ask that question broadly I14 think is unclear.15 JUDGE MIHALSKY: Sustained.16 BY MS. PREMEAU:17 Q. Take a look at the Exhibit D to your report. You18 were asked certain questions regarding various tabs and19 whether or not you could tie them into Magellan's actual20 proposal. Do you recall that line of questioning?21 A. Yes.22 Q. Got a bit confusing. I'm hoping we can clarify23 it.24 But the first tab that was referenced in25 order was tab 2, and that's found on Exhibit D. We looked

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1 to page -- page 3 of Exhibit D, tab 2 of Exhibit D. 2 A. Uh-huh. 3 Q. I want to make sure that we are very clear. 4 The revised points that you provide in your 5 report that should be given for Magellan for 3 points, 6 does that correlate with any scoring errors that Magellan 7 put in its bid protest? 8 A. On this one in particular, I think it's not 9 specifically called out. But it is, I think, referred to10 as in the bias. Because there is -- there's clearly11 information here that demonstrates a comprehensive12 understanding of integration, but there was no points13 awarded. So I think it really gets into -- and I'm not14 sure where the specific paragraph is, but I know in the15 report it indicated that there was a bias. And I would16 say that would be a bias issue.17 Q. Do you recall Magellan specifically saying they18 felt like they were treated unfairly, that they were19 biased because they weren't given any credit, any20 experience for the integrated home health programs?21 A. Yes.22 Q. And so page 3 of Exhibit D, tab 2, does that23 support -- in your opinion, is that consistent with24 Magellan's opinion that they didn't get fair treatment for25 their integrated healthcare program?

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1 A. Yes. 2 Q. I think we got through on this one, but let's 3 take a look at tab 6. That's at page 9 of Exhibit D, and 4 obviously tab 6. This was also referenced in Magellan's 5 proposal, correct? 6 A. Correct. 7 Q. This is the whole issue about getting deducted 8 for specifically section 8.13, 25 points here, 10 points 9 here, correct?10 A. Correct.11 Q. Take a look at the next one, tab 7.12 In your report, you said that you thought13 Magellan should not have been deducted 15 points "for the14 delivery of care coordination for members that choose a15 PCP outside of the Health Home (HH) there is not a clear16 description of how the contractor will ensure that the PCC17 will participate in the integrated treatment team."18 In your review of Magellan's objection -- or19 their bid protest, did you see references to Magellan20 complaining that they weren't getting proper credit for21 their information regarding coordinated care and22 integrated health?23 A. Yes.24 Q. And does tab 7 of Exhibit D support Magellan's25 position in that regard?

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1 A. Yes. 2 Q. So when I look at your Exhibit D, Dr. Temm, with 3 a pretty hefty number of attachments, 1 through 12, is 4 this really a matter of judgment or a matter of objective 5 information? 6 MS. DESAI: Objection. Leading the witness. 7 JUDGE MIHALSKY: You can make legal argument 8 at the end of the hearing numerous times, but don't lead 9 the witness. Sustained.10 MS. PREMEAU: Okay.11 BY MS. PREMEAU:12 Q. I guess, Dr. Temm, my thought is when somebody13 says, "It's a matter of judgment," it's almost a way of14 minimizing one's opinion.15 When you say you used your judgment, tell me16 specifically what you did to use your judgment in reaching17 your opinions?18 A. I actually went back to the scope of work, which19 was the only document that was being used to evaluate the20 responses, and literally looked for the response to be in21 black and white that addressed each of the points that22 were being identified.23 Q. When Magellan hired you, did they -- I'm sorry,24 let me rephrase.25 When Ridenour hired you, on behalf of

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1 Magellan, were you ever asked to compare Magellan's scores 2 to United's scores? 3 A. No. 4 Q. Were you hired to compare Magellan's scores to 5 MMIC's scores? 6 A. No. 7 Q. Were you -- Tell me specifically what you were 8 hired to do? 9 A. To actually look at the response in comparison to10 the evaluation and scoring sheets and validate or dispute11 the findings of whether there was proof in the actual12 response that validated the scoring, whether it was13 positive or negative.14 Q. And did you reach a conclusion based on whether15 Magellan was scored in a biased manner?16 A. Yes.17 Q. And what is your opinion?18 A. I think it was biased.19 Q. Biased enough that Magellan should have had more20 points than MMIC?21 MS. DESAI: Objection. Leading the witness.22 JUDGE MIHALSKY: Sustained.23 BY MS. PREMEAU:24 Q. You were asked questions about the evaluators,25 that these evaluators at subject -- were subject matter

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1 experts. Do you recall that line of questioning? 2 A. Yes. 3 Q. What is your understanding of the subject matters 4 in which the evaluators are experts in? 5 A. I really don't have any knowledge on what their 6 specific subject matter expertise is. 7 Q. So that was just something you accepted at face 8 value, that they must be subject matters because they're 9 evaluating this proposal?10 A. Basically, in the evaluation document, it has the11 forms that were filled out by the evaluators, as well as12 individuals who were, quote, subject matter experts,13 according to the document. So I'm relying on those14 documents that they somehow -- that the individuals were15 identified that they are a subject matter expert.16 Q. Did you see anything, in those documents that you17 reviewed, that showed any of the evaluators having18 experience regarding procurement services for integrated19 physical and behavioral healthcare for individuals with20 serious mental illness?21 A. No, I did not.22 Q. Or do such people exist in our country?23 A. Yes.24 Q. If somebody wanted to retain an individual with25 subject matter expertise regarding procurement services

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1 for individuals with serious mental illness who needed 2 integrated physical and behavioral healthcare, where would 3 we find these people? 4 A. There are a number of consultants -- consulting 5 firms, in particular, that -- larger ones -- that have a 6 lot of expertise in this area. Many of them have been 7 retained by a number of the states, that I'm well aware 8 of, throughout the country that are using them. 9 Q. And to your -- to the best of your knowledge,10 you're not aware of any of those experts specifically11 within this targeted scope of RFP being brought in to12 evaluate these proposals, are you?13 A. No, I'm not.14 MS. PREMEAU: No further questions.15 JUDGE MIHALSKY: Very good. Thank you,16 Dr. Temm.17 THE WITNESS: Thank you very much.18 MR. KAITES: Your Honor, we have 30 minutes19 before lunch. We are prepared to call our next witness if20 you would like to proceed.21 JUDGE MIHALSKY: I think -- yeah, if you22 can, if the witness is ready, we'll start. Yeah, I mean,23 12:00 to 1:00 works pretty well for lunch. So if you can24 reach a good breaking point, thereabouts.25 MR. KAITES: Yes, Your Honor. We would call

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1 Christine Ruth as the next witness -- Wait a minute. I'm 2 sorry. Margery Ault. 3 MS. PREMEAU: Okay, Kevin, you think you had 4 a look of terror on your face? That's fine. I need to 5 rest. 6 MR. KAITES: Judge, we would call Margery 7 Ault. And we would -- we're going to move around. I'm 8 going to have Ms. Premeau move here. I'm going to have 9 Ms. Manjencich move here.10 JUDGE MIHALSKY: Okay. Yeah, you can make11 your adjustments.12 Ms. Ault, would you come up here? And while13 everybody's making their adjustments, I can administer the14 oath to you.1516 MARGERY AULT,17 called as the witness herein, having been duly sworn, was18 examined and testified as follows:1920 JUDGE MIHALSKY: Would you please state your21 name for the record and spell both names for the court22 reporter, please.23 THE WITNESS: Margery Ault, M-a-r-g-e-r-y24 A-u-l-t.25 JUDGE MIHALSKY: And I'm not sure who will

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1 be doing the direct examination at this point. 2 MS. MANJENCICH: I will be, Judge. 3 JUDGE MIHALSKY: Very good. You may 4 proceed. 5 MS. MANJENCICH: Thank you. 6 7 DIRECT EXAMINATION 8 BY MS. MANJENCICH: 9 Q. Ms. Ault, my name is Zora Manjencich, and I'm10 here on behalf of Magellan.11 I want to thank you in advance for helping12 us understand the scoring process in this case. Okay? So13 I'm going to be asking some questions because it's just an14 area I'm not familiar with. Okay?15 A. Okay.16 Q. Could you please tell us what your occupation is?17 A. I am the assistant director for the Department of18 Health Services Division of Behavioral Health Services19 over the compliance and consumer rights area.20 Q. And so how long have you held that position?21 A. Since July of this year.22 Q. Prior to that, what was your position?23 A. We've had some name changes, that's not an24 uncommon thing in state government. But prior to that, I25 was the branch chief for quality management and consumer

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1 rights. 2 Q. And that was, again, with the Department of 3 Health Services? 4 A. Correct. 5 Q. How long have you been with them? 6 A. Since 2000. 7 Q. Where did you work before you came to the 8 Department of Health Services? 9 A. With ValueOptions.10 Q. What did you do for ValueOptions?11 A. I managed their grievance and appeals unit, and I12 also did some management of their SMI eligibility unit as13 well.14 Q. Give us the time frame that you worked with15 ValueOptions.16 A. It was approximately a year, so I think it was17 around 1999 to 2000.18 Q. During that time, was ValueOptions the RBHA?19 A. Correct.20 Q. And while you were there, were you working with21 Jim Stringham?22 A. Not directly. But, you know, I understood that23 he worked there, yes.24 Q. Okay. And you saw him here testifying yesterday?25 A. Yes.

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1 Q. Recognize him? 2 A. Yes. 3 Q. All right. With respect to your current duties 4 with ADHS, could you tell me -- compliance and consumer 5 rights, what does that mean? 6 A. So in the compliance area, I oversee the areas of 7 contracting -- contract compliance. So once we have a 8 contract in place, overseeing to monitor and do oversight 9 for the contractual requirements to ensure compliance.10 And there's also a policy component, the policy11 development area.12 In the -- I'm sorry. Did you ask just for13 the compliance component or do you want both?14 Q. Both of them.15 A. Okay. And so for the consumer rights area,16 currently I'm overseeing the grievance and appeals unit,17 the office of human rights, and the human rights committee18 liaison, liaisoning.19 Q. And if we were dividing your work duties, how20 much is actually compliance, overseeing the contractor or21 doing the consumer?22 A. I see it as I have an overall responsibility23 equally for, you know, all of the aspects I oversee. How24 much time I spend kind of depends on the developmental25 needs of that particular area, so . . .

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1 Q. So you can't estimate if it's a 50-50 deal or -- 2 A. Right now I'm spending probably more of my time 3 on the compliance end. Right now we're going through a 4 number of extensions or amendments, so quite a bit of time 5 is spent doing that right now. 6 Q. Would it be safe to say that, with the 7 compliance, you're certainly working with Magellan as the 8 current RBHA? 9 A. Correct.10 Q. Are part of your duties with the Arizona11 Department of Health Services being an examiner of12 procurements?13 A. As far as is it part of my job description or --14 Q. Sure.15 A. -- have I been asked -- I have been asked -- that16 is not -- I don't believe it's part of my job description,17 but I would not know unless I looked at the actual PDQ18 itself.19 Q. As you sit here today, you do not believe that20 that's one of the job duties you understood when you took21 the position. Is that a safe statement?22 A. Correct.23 Q. And I take it it's not something you put down on24 your resume either, that you are an examiner of25 procurement?

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1 A. No. 2 Q. How many times have you done this before? 3 A. As far as doing the evaluation part or coming in 4 for some specific pieces of it? 5 Q. Actually acting as the examiner doing the -- 6 A. Scoring. 7 Q. -- taking a look at the bid proposals? 8 MR. RAY: Can I just -- this is Mr. Ray, for 9 the record. I think the difficulty Ms. Ault is having is10 she doesn't understand the term "examiner." I don't11 either. I think the documents are replete with the term12 "evaluation committee member" or "evaluator." I'm not13 sure if there's an expansive definition that counsel's14 applying to the term "examiner."15 MS. MANJENCICH: Judge, there certainly16 isn't. I'm happy to rephrases my question and call it an17 "evaluator" from now on.18 BY MS. MANJENCICH:19 Q. And just so that there's no misunderstanding,20 Ms. Ault, do I need to go back with my questions? Did you21 understand that when I asked, as an examiner of22 procurements, that I was talking about being an evaluator23 of the procurement bids?24 A. As far as part of my PDQ or position description?25 Q. Yes --

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1 A. No, not that I'm aware. 2 Q. -- the prior questions that I asked in that 3 regard. 4 A. No. 5 Q. Would you change any of your previous answers -- 6 A. Not as to that. 7 Q. -- if I interchanged the word "evaluator" in 8 those questions? 9 A. No. Other than I'm not sure what your last10 questions were because I've now forgotten about them.11 Sorry.12 Q. Have you performed as an evaluator of a13 procurement prior to this --14 A. For a portion, yes.15 Q. For a portion?16 A. Correct.17 MS. PREMEAU: Your Honor, if I could just18 ask that the witness be reminded to wait until the answer19 is complete for the court reporter.20 JUDGE MIHALSKY: Yes, that's always a good21 idea.22 MS. PREMEAU: Thank you.23 JUDGE MIHALSKY: Let the other person finish24 before we start.25

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1 BY MS. MANJENCICH: 2 Q. And just going back, I'm talking about the 3 function that you performed in the 2013 bids, as an 4 evaluator, had you ever done that before? 5 A. For a particular section, yes, in a previous 6 solicitation. 7 Q. All right. And your job, in the 2013 8 procurement, was that only limited to a specific section? 9 A. No.10 Q. Okay. So my question again, have you ever acted11 as an evaluator for an entire procurement -- not just a12 section -- as you did for the 2013 bid?13 A. No.14 Q. So this was your first time?15 A. Yes.16 Q. And since you mentioned that you have done it17 before for a particular section, how many times have you18 acted as an evaluator on just a particular section?19 A. One.20 Q. And when was that?21 A. I'm trying to -- I actually -- I'm having a hard22 time remembering which solicitation it was. I don't23 believe it was the greater Arizona, so I think it must24 have been -- it must have been in Maricopa County, but I25 can't recall which solicitation it was. I'm sorry.

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1 Q. All right. It didn't happen to be the 2007 RBHA 2 procurement, did it? That Magellan won? 3 A. I'm not -- I'm sorry, I can't remember. So I 4 don't want to mistestify. 5 Q. Would you be able to say whether or not it was in 6 relation to a RBHA? 7 A. Yes. 8 Q. You just don't know which one and when? 9 A. Correct.10 Q. And when you said it was with respect to a11 particular section, what particular section were you asked12 to evaluate?13 A. The grievance system requirements.14 Q. And just to educate me, what does that mean?15 A. The grievance system requirements would encompass16 things like notice to members when you make an adverse17 decision, it would include claims disputes, it would18 include appeals processes available for members, and it19 would include member grievance processes.20 Q. Could you tell us what experience do you have in21 integrated healthcare?22 A. In integrated healthcare, my experience is23 limited to the development of the solicitation itself and24 my work with -- working with the other folks around that,25 as well as working with the CRS program, Children's

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1 Rehabilitative Services. 2 Q. Well, I guess you have some experience working 3 with Magellan and their integrated home health that has 4 already been in progress? 5 A. I'm aware of some of their initiatives related to 6 that, but I have not been specifically involved with that, 7 as that hasn't been a part of our contract. 8 Q. Now, you indicated that you were actually -- at 9 least I think that's what you said -- involved in the10 development of the solicitation. Is that right?11 A. Correct.12 Q. Okay. And tell me about that. What was your13 involvement with actually preparing the solicitation?14 A. We had a large group of folks who had been15 involved with developing the scope of work and providing16 input into that document itself, which formed the basis17 for the solicitation itself.18 Q. Was there a particular section of the19 solicitation that you worked on?20 A. As -- there -- there was -- we all worked on all21 of the -- of all the sections as we went along. There22 were certainly areas where I would say I provided some23 heavy -- some of the heavier lifting around those24 particular sections, but we were participating throughout25 the development of the solicitation in whole.

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1 Q. And how many people were involved in preparing 2 the solicitation? 3 A. I don't know what the exact count was. I'm 4 trying to kind of envision the room we were in. I would 5 say probably between 12 and 20. And it would vary. 6 Because this was -- this was an ongoing 7 process and so, you know, the participants would -- would 8 vary in terms of depending on what was happening within 9 the agency or bringing in some external parties to help10 with that development process.11 Q. And when did that process begin?12 A. I'm not going to have an exact date, I'm sorry.13 This is -- this isn't going to be --14 Q. That's okay. A general idea?15 A. I would say at least a year before the actual16 release of the solicitation.17 Q. Do you remember when the solicitation was18 released?19 A. I believe it was -- You know, actually, I can't20 remember what day that was either. I'm sorry.21 Q. Were you also involved in the development of the22 amendments to -- any amendments to the solicitation?23 A. I don't -- I don't understand your question on24 that part.25 Any amend ments to the -- which would

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1 include what? I'm sorry. 2 Q. Just generally, with respect to the solicitation 3 when it was initially released, if there were any 4 amendments after that release, were you involved in any of 5 that? 6 A. In terms of discussion or writing or what? 7 Q. Any written changes or modifications to the 8 solicitation? 9 A. I was not involved in -- personally -- in the10 written modification of it.11 Q. Are you aware of any amendments or modifications12 to the original solicitation?13 A. Yes.14 Q. Were you involved in any of the discussions15 relating to those changes?16 A. Yes.17 Q. Could you give us an idea how many discussions18 were held about the amendments to the solicitation?19 A. I don't -- I don't know that I was involved in20 all -- all of the discussions. There's probably only one21 discussion that I was involved with or had -- had had any22 knowledge of.23 Q. Tell us about that.24 A. It had occurred -- and it was -- it was many25 items within -- within what was provided as feedback in

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1 the -- and I'm not going to get the terminology right, I'm 2 sorry. I'm not an expert in this area in terms of the 3 procurement process itself. 4 But there is a -- there was a bidder's 5 conference, I believe is what they call it. And as part 6 of that, the purpose of that is for potential bidders to 7 provide feedback around the solicitation itself. Based 8 upon that feedback, we reviewed that as a -- as a team 9 internally to talk through the various items in terms of10 proposals to amend the solicitation accordingly.11 Q. All right. And which amendment did you have some12 involvement in?13 A. I don't know what amendment number that would be.14 I'm sorry.15 Q. What was it about?16 A. There were -- there were a number -- I wasn't17 specifically involved in anything other than taking back18 the -- the talking points from the bidders' conference and19 discussing those. So I don't know how they would align to20 what amendment piece of it.21 Q. All right. So you're aware there were some22 amendments. You believe you were involved with one of23 them, but you can't tell me what --24 A. I didn't say -- when I said one of them, I meant25 the bidders' conference and what came out of that.

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1 Q. Okay. 2 A. So with the bidders' conference came a number of 3 different items. We, as a team, had gone through each of 4 those items to have discussion around -- around those 5 particular pieces. 6 Q. Were you involved in any of the discussions 7 relating to subcontracting and Mercy wanting to know 8 whether or not they can subcontract the management? 9 A. The subcontracting piece, the part that I was10 involved with was the communication internally around11 whether that was something that we could do, whether we12 would have some sort of an objection, and what our end13 goal was in terms of with those particular types of14 administrative pieces of the business.15 Q. And who was there during this discussion?16 A. I'm sorry, I don't -- I don't remember who all17 was part of those conversations.18 Q. What was discussed?19 A. We talked about the importance of not splitting20 out certain pieces.21 So, for example, our ultimate goal was to22 ensure that all of those major managed care functions23 were -- were being done by one particular entity and that24 it wasn't going to be separated out and say, for example,25 taking the medical management piece and separating and

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1 having a different company perform the grievance system 2 requirements, et cetera. 3 Q. All right. So was that the decision after the 4 discussion you had with your group? 5 A. The decision as -- that -- my input to that 6 piece, I don't -- I don't know from there, other than 7 ultimately what happened. But my piece of it was to weigh 8 in around not bifurcating those functions of having them 9 maintained in whole.10 Q. Okay. Which means one person being responsible11 for administering the RBHA?12 A. Which means one person being responsible for the13 administrative functions that we had outlined in -- in the14 contract -- solicitation.15 Q. That was your vote with respect to how it should16 be handled. Is that right?17 A. Correct.18 Q. Do you know whether you were overruled on that?19 A. As far as?20 Q. Allowing that function to be subcontracted.21 A. No, I don't think I was overruled.22 Q. Are you aware that MMIC is subcontracting with23 Schaller Anderson to do the administrative function?24 A. Yes.25 Q. Isn't that contrary to how you felt the

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1 administration should be handled for the RBHA? 2 A. No. 3 Q. You agree then with subcontracting out the 4 administrative function. Is that correct? 5 A. As long as it was maintained in whole, meaning 6 that it wasn't going to be pieced out. We wouldn't have, 7 you know, a subcontractor who would perform medical 8 management and another subcontractor who was performing 9 the grievance system requirements. So it was done in10 whole. That administrative function wasn't going to be11 bifurcated or split into entities beyond just that whole12 thing, because it was important for the continuity of the13 administrative functions.14 Q. That theory of the RBHA was different than what15 the initial solicitation was, wasn't it?16 A. That's correct.17 Q. Do you know when that change took place?18 A. I don't know the exact date of the amendment, but19 it would be post that bidders' conference.20 Q. Would you agree then kind of late in the process?21 A. I don't -- I'm not -- I can't speak to that. So22 I don't know what's normal or not normal in that process.23 Q. Because you've never done it before?24 A. Correct.25 Q. You indicate -- Was it a large group that dealt

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1 with developing the scope of work? 2 A. Yes. 3 Q. Did everyone work on all the sections? 4 A. Everyone communicated, so, yes, there was work 5 being done by all people in that process. 6 But, again, there would be some people who 7 might be, you know, absent for -- had to attend a 8 particular meeting or what have you. But everyone was 9 expected to have reviewed the sections in advance to be10 prepared to have conversation and communicate around the11 content of those sections and make recommendations related12 to the sections -- all the sections across the board.13 Q. Now, you indicated that you actually did some14 heavier lifting in some sections or a section. In what?15 A. It's basically -- was taking the lead in the --16 any sections related to the grievance system requirements,17 as well as in some of the contractual remedies sections,18 and specifically sanctions, et cetera.19 Q. Would you say during this process of preparing20 the solicitation that this -- the group of people that21 were working, even though some would come and go or not be22 at that meeting, that generally the numbers that were23 there were somewhere between 12 and 20 people discussing24 the solicitation?25 A. Yes.

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1 Q. Could you tell us who took the lead concerning 2 the integrated care section of the solicitation? 3 A. I don't know who took the lead for that. 4 Q. And is that because you missed those meetings 5 or -- why -- 6 A. No. It was -- it -- the group itself was led by 7 the healthcare development team as we were working 8 through, you know, the development of the sections. So if 9 anyone took a lead, it was them. But in terms of10 facilitating the meeting, not in terms of necessarily the11 content.12 And I believe your question was -- unless13 I'm incorrect -- you were asking about who was taking the14 lead as to the content of those sections.15 Q. Yes, I was.16 Who was on this team that you're talking17 about?18 A. So at that time, during the development, it would19 have been Dr. Laura Nelson, I think Robert Sorce was20 involved, it would have been the key management in place21 at that time for the various sections. I'm not -- I'm not22 sure I can give you a specific list because we've had a23 lot of changes in personnel over that time.24 Q. Can't remember any more names?25 A. We had some participation from AHCCCS,

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1 periodically come in. And -- 2 Q. Who from there? 3 A. I believe we had individuals including Kristin 4 Frounfelker. We had -- Tom Betlach I believe even had 5 come to at least one of the meetings. Their deputy 6 directors there -- from that agency as well. 7 Q. Anybody else you recall? 8 A. I believe Kim Elliot may have come at one time, 9 but I -- I can't -- I'm not positive about that.10 Q. Is that everybody you can remember?11 A. Yes, pretty much.12 Q. Could you describe your experience in physical13 healthcare?14 A. Physical healthcare is -- has been limited to15 just my participation in the Children's Rehabilitative16 Services area.17 Q. And could you tell us just what your experience18 is with the Children's Rehabilitative Services? What19 exactly is your involvement?20 A. I had been asked to help out in the Children's21 Rehabilitative Services side of the business. That would22 have been two years preceding the transition to act -- its23 transition to AHCCCS. And specifically I was asked to24 help with their grievance system requirements and -- and25 operationalizing and overseeing their grievance system

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1 requirements. 2 Q. Has that changed, the children's services, in the 3 last year? 4 A. Yes. 5 Q. Okay. How? 6 A. Over the -- over the last year, that has been -- 7 AHCCCS has taken over the program for Children's 8 Rehabilitative Services directly rather than contracting 9 with ADHS to provide those Children's Rehabilitative10 Services to that population.11 And in addition, recently those services are12 going to be all now provided under one particular13 contractor.14 Q. When we say that, are we talking about one15 contractor --16 MS. MANJENCICH: I'll withdraw that, Judge.17 JUDGE MIHALSKY: I've got 5 till noon. This18 might be a good time for a lunch break.19 Same thing as yesterday. We'll go back on20 the record at 1:00. And the room will either be locked or21 someone will be in here. We're off the record.22 (A recess ensued.)23 JUDGE MIHALSKY: We're back on the record24 after the lunch hour. A couple housekeeping things I25 wanted to raise. First of all, we spent a lot of time

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1 talking about Exhibit D to Dr. Temm's report during her 2 testimony. If Magellan would like to submit another 3 exhibit that consists of a redacted Exhibit D, that 4 doesn't include the two or three sections that were not 5 included in the bid protest, the webmaster can accept 6 additional exhibits. You just need to follow case 7 management order number 1 in terms of submitting the 8 exhibit in the proper format, electronically, and a hard 9 copy of the exhibit.10 MS. PREMEAU: Your Honor, if I could ask for11 clarification. So are you ruling that -- I don't have my12 notes in front of me at this moment, but certain tabs that13 were brought out on cross-examination, that Dr. Temm14 didn't sufficiently address why those were incorporated15 within Magellan's scoring errors?16 JUDGE MIHALSKY: I'm not making a ruling at17 all. I'm simply saying there is no Exhibit D that has18 been admitted that doesn't include the report and sections19 that definitely are not admissible pursuant to my ruling.20 MS. PREMEAU: Thank you.21 JUDGE MIHALSKY: I'm not making any ruling22 at all. Because the reports in Exhibit D were not offered23 because, as you realize, my ruling on the objection24 yesterday rendered some parts clearly inadmissible, that25 you certainly may submit another exhibit if you comply

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1 with case management order number 1. And I am not 2 committing ahead of time to admit the exhibit, and if you 3 want to provide it to the other parties and reach any 4 understanding beforehand, then you may do so. And 5 otherwise, when the time comes when I have the exhibit, I 6 will make whatever appropriate ruling is necessary on its 7 admissibility. 8 MS. PREMEAU: Thank you, Your Honor. That 9 clarifies it for me, and we will be submitting it tomorrow10 morning. I suspect we can address whether there are any11 objections towards admissibility.12 JUDGE MIHALSKY: Very good. The second13 thing I wanted to say is attendance at these large14 hearings generally falls off a little bit after the first15 few days, and it is possible that in -- at some time we16 may not need hearing room B for our overflow. However,17 the people in hearing room B are having a really hard time18 understanding us. And so I'm not sure if we can totally19 cure that problem, but everyone, when you speak, if you20 would try to speak up when you say anything. And21 understand that there is a microphone up there in the22 camera that is picking it up for the benefit of the23 spectators in hearing room B.24 And for everyone who's not speaking, if we25 can keep the moving around and the chatter and so forth

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1 down to a minimum. And as I said, I believe that this 2 will be a short-term process, and I understand that there 3 are some attorneys in hearing room B who are going to have 4 to examine witnesses based on -- which may be an 5 incomplete or maybe garbled rendition of the evidence, and 6 certainly we'll do the best with what we have. And so 7 that's all -- that's all I have to say. 8 Are you ready to proceed with your 9 examination of Ms. Ault?10 MS. MANJENCICH: Yes, Your Honor, we are.11 JUDGE MIHALSKY: Very good.1213 DIRECT EXAMINATION (CONTINUED)14 BY MS. MANJENCICH:15 Q. Ms. Ault, welcome back. I want to start off with16 wishing you a happy birthday. We learned that over the17 noon hour. Hopefully we'll be done quickly so you can go18 ahead and celebrate your day.19 A. I would be okay with that.20 Q. Going back to your testimony before the lunch21 break, you were -- you had mentioned to us that you had22 experience in integrated care with CRS --23 A. Correct.24 Q. -- right? And I just want to backtrack on that.25 Was your involvement with CRS actually helping with the

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1 new solicitation that was being offered concerning CRS? 2 A. No. 3 MR. RAY: Margery, could you speak up? 4 THE WITNESS: I'm sorry. No. 5 BY MS. MANJENCICH: 6 Q. Did you have any involvement with that RFP? 7 A. With the RFP that's been issued by AHCCCS? 8 Q. Yes. 9 A. No.10 Q. Did you ever -- were you involved at all in the11 oversight of the CRS program?12 A. Yes.13 Q. And that was specifically with respect to14 integrated care?15 A. CRS -- the CRS program involved an element of16 integration. It wasn't an integration from the same type17 of integration as is contemplated in the solicitation, but18 they have Integrated Health Home type model that they19 operate with in terms of the CRS program.20 Q. All right. Did you actually -- were you involved21 in the oversight of that program?22 A. I was involved in the oversight, yes.23 Q. And that program is not similar to the one that24 we're dealing with here in the 2013 bid?25 A. Correct, it's not. It's not the same.

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1 Q. Have you ever been involved with the oversight or 2 the operation of an integrated care program like this 2013 3 solicitation? 4 A. No. 5 Q. Going back to the subcontractors amendment, had 6 it been the position up to the amendment being done that 7 there would not be the availability of using a 8 subcontractor to administer the RBHA, the management? 9 A. That is what the literal solicitation stated at10 that time, yes.11 Q. And was that as the solicitation was -- when it12 was published, that was -- certainly that there was no13 subcontractor availability allowed?14 A. As it was published at what point? I --15 Q. When the solicitation came out for the bid16 proposal.17 A. Prior to the bidders' conference or --18 Q. You indicated you didn't know when the amendment19 was changed?20 A. Correct.21 Q. Prior to the change, would you agree that has22 been -- the solicitation called for no subcontractors23 allowed?24 A. It did not -- it did not contemplate a25 subcontractor, no.

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1 Q. Do you know why the view changed? 2 A. I can only speak to my involvement with the 3 conversation. 4 Q. Okay. 5 A. So as I understand it, it involved expanding the 6 scope of potential bidders. 7 Q. All right. And that was with respect to Mercy, 8 correct? 9 A. I -- That part, I don't know. It could be the10 entire field, so Mercy had expressed that in terms of11 bringing that forward, yes.12 Q. They were actually the only bidder that gained13 from that amendment, correct?14 A. I was not aware of that.15 Q. Are you aware of any of the other bidders that16 had a subcontractor administering the RBHA?17 A. No, I'm not -- I don't recall that.18 Q. And when you said the discussion and what the19 views were prior to the amendment being made, could you20 give me an idea of the number of people that were involved21 in agreeing to the change?22 A. I don't even -- I barely remember the23 conversation. I know that we had had a subsequent meeting24 after the bidders' conference to have a dialogue roundup.25 I don't recall who all was involved in it. I don't recall

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1 how many people there were at the table. 2 Q. You don't have any memory of it? 3 A. Not the -- not the who or the how many, no. 4 Q. Is there -- if you were asked who made the final 5 call, was there one person that made the final call to 6 make the amendment? 7 A. I don't know who made the final call. I can only 8 provide you information about the input I had. 9 Q. Do you remember anybody being more vocal than the10 others in the group?11 A. Only -- I don't know. I don't recall even the12 people who were in the meeting, so I don't recall who was13 more vocal than another person.14 Q. I would like to turn to finding out just how you15 became a evaluator in this 2013 solicitation. How did you16 get picked?17 A. I have no idea.18 Q. Did you actually have to let someone know that19 you would like to do it?20 A. Can you -- I'm not understanding your question.21 Q. Well, based on that last answer, you have no idea22 how you became designated as an evaluator in this 201323 RBHA. Is that correct?24 A. I have no idea why I was picked as being an25 evaluator for this solicitation. I do know that I was

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1 asked to participate. 2 Q. Who asked you? 3 A. Cory Nelson. 4 Q. And who is Cory Nelson? 5 A. He's my boss. He's the deputy director of the 6 division of behavioral health services. 7 Q. So he is your direct boss? 8 A. Correct. 9 Q. Do you remember when he asked you to be an10 evaluator?11 A. Well, I may have to kind of go back and correct12 because the actual selection occurred through the13 procurement process, but I -- I guess I assumed that my14 boss had identified me as a potential person who would be15 an evaluator, but the process involved meeting with16 procurement staff, going through a series of questions17 around potential conflicts of interest, et cetera. And18 then shortly thereafter I received a notification from the19 procurement folks, basically identifying that I had been20 put on the -- as an evaluator for this solicitation.21 Q. So is it first you believed Mr. Nelson mentioned22 your name or put your name in or is there something that23 happens before that that throws your name into --24 A. I actually don't know that for sure. I don't25 know what happened behind those scenes. All I know is I

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1 had gotten an email from the procurement folks to 2 basically sit down with them to -- in a meeting that 3 reviewed, you know, whether I had a potential conflict of 4 interest. And thereafter I received an email basically 5 saying that I was selected as an evaluator for the 6 solicitation. 7 Q. Prior to this email, did you have any idea that 8 you were being considered to be an evaluator in this 2013 9 RBHA?10 A. I assumed it was always possible that I could be11 selected as an evaluator.12 Q. Why did you think that?13 A. Just based upon certain knowledge that I have14 around the contractual requirements and the specific15 expertise I would bring to that type of evaluation16 committee.17 Q. And I guess were you thinking of that as you were18 helping working on the solicitation for this 2013 RBHA?19 A. Was I thinking about --20 Q. That you were possibly being considered as an21 evaluator.22 A. I did not have a thought one way or the other as23 we were putting together the solicitation, no.24 Q. All right. So that came later?25 A. Yes.

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1 Q. Who sent you the email? 2 A. I'm not sure if it was Chris Ruth or somebody 3 from -- Somebody from the procurement office did. 4 Q. And when you say you felt that you may be 5 considered for the position as an evaluator because of the 6 expertise that you were bringing to the table concerning 7 contracts? 8 A. I think that from my experience of working with 9 behavioral health systems, I have a wide variety of10 experience on different areas of the contract itself.11 Some more specialized than others. So, for example, on12 the grievance system, that is probably my primary, you13 know, area of expertise, but I also have a broader array14 of knowledge related to the requirements for the15 behavioral health systems.16 Q. Could you give us more details on that, the other17 experience?18 A. Well, as part of even working in the grievance19 system itself, you become somewhat of a jack-of-all-trades20 because it pretty much touches almost every aspect of the21 business operations of managing a RBHA, so it goes from22 how the claims and encountering processes work to23 understanding what criteria are for prior authorization,24 et cetera. So it just spans a wide variety of topics.25 Q. Any other subcategories that you would

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1 characterize that you felt you had an expertise in? 2 A. That I had a particular expertise or generalized 3 knowledge of? 4 Q. Okay. I guess the part that you throw into the 5 jack-of-all-trades. What else would fall under that? 6 A. The jack-of-all-trades? I'm trying to think of 7 an area of the business that I wouldn't have some sort 8 of -- 9 Q. It's probably easier to talk about the areas that10 you do. That way if you can just go through the list in11 addition to the two that you mentioned.12 A. You mean, specifically through my experience with13 working with grievance and appeals or just my generalized14 experience in working -- being assigned to various areas15 of operations?16 Q. What you thought you had an expertise in that17 would be considered a good qualification for you to be an18 evaluator here.19 A. Okay. So certainly the grievance system20 requirements. I have familiarity with the requirements21 under the quality management and medical management. I22 have an understanding of -- Actually, it might help me to23 look at the scope of work or the solicitation itself to --24 Q. When you mention you have an understanding or a25 familiarity, what does that mean?

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1 A. That for -- Okay. When I have a familiarity, 2 that means I'm familiar with the requirements that relate 3 to those particular aspects of the business and in some of 4 the instances I've been very involved with working on 5 those pieces. On others, it's more of a general 6 familiarity. 7 So in looking at this, I have the 8 familiarity of the scope of services in terms of the -- 9 you know, the covered services under the contract, talked10 about the medical management and quality management pieces11 of it, corporate compliance. And, you know, general, in12 terms of like encounter claim submission, et cetera.13 Administrative requirements. Those would be the areas14 that I'm most familiar with.15 Q. As you're going through this scope of work, are16 there any areas that you have no familiarity with?17 A. I can't say I don't have any familiarity because18 I was involved in working through the various sections as19 we were putting it together, but there are some areas that20 I am, you know, less familiar with than others.21 Q. And I certainly understand you have a little bit22 more experience now than you did before. But I'm talking23 about before becoming an evaluator, are there any areas24 that --25 A. That's what I was talking about because I had

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1 been involved in putting together -- I was part of that 2 team that put together the actual scope of work. So with 3 that, you're working to understand what the requirements 4 are for each of those sections, so from that standpoint 5 you're familiar with what the requirements are. 6 Q. And prior to your work preparing this 7 solicitation with that group of people, I guess that would 8 be where your familiarity or understanding came from on 9 these other areas, correct?10 A. Correct, yeah.11 Q. And looking at the scope of work, what were the12 areas that, prior to working on the solicitation, you had13 no experience or familiarity with?14 A. Do you want me to walk it down? Medicaid School15 Based Claiming Program would be one of those pieces.16 MR. RAY: Could I ask you for the record to17 identify a particular -- You're referring to the scope of18 work, Margery. If you see something that you identify,19 would you give us a number so the record will be clear, we20 can find it?21 THE WITNESS: Okay.22 MS. MANJENCICH: For the record, we're23 looking at Joint Exhibit Number 4.24 THE WITNESS: That was 4.19. Prior to the25 development of the solicitation, this is a pretty novel

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1 approach in terms of how care coordination and 2 collaboration is working, so those would have been new 3 elements. 4 JUDGE MIHALSKY: Were those particular 5 sections of the solicitation? 6 THE WITNESS: Yeah, I'm sorry. There was -- 7 I'm sorry. 8 JUDGE MIHALSKY: Okay, section 5. 9 THE WITNESS: Section 5, 16.2, 16.1.10 JUDGE MIHALSKY: What are those sections?11 THE WITNESS: Those are Physician Incentive12 Requirements, Nursing Facility Reimbursement. Those are13 the pieces that are popping out at me right now.14 BY MS. MANJENCICH:15 Q. Prior to work on this solicitation, going back16 through the list of Joint Exhibit Number 4, could you tell17 me what section you feel you had an expertise in?18 A. Section 13, the Grievance System Requirements.19 Section 4.21, Special Assistance for SMI Members. 18.19,20 SMI Eligibility Determination. 19.5, Corrective Action,21 Notice to Cure and Sanctions.22 Q. Okay. Anything else?23 A. No. Those would be the areas of expertise I24 have.25 Q. Were the RBHA responsibilities under this 2013

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1 solicitation the same as the current RBHA for behavioral 2 health services to the broad population including 3 individuals with serious mental illness? 4 A. Can you repeat that, please? 5 Q. You bet. Were the responsibilities under this 6 2013 solicitation the same as the current RBHA for 7 behavioral health services to the broad population 8 including individuals with serious mental illness? 9 A. Is it the same contract? Or same contract10 requirements?11 Q. Responsibilities.12 A. The same responsibilities, no.13 Q. Sure.14 A. I may not understand your question.15 Q. Fair enough. If you don't understand what I'm16 asking, just let me know that. Okay?17 A. Okay.18 Q. So you don't understand what I'm asking about the19 requirements under the 2013 solicitation and those that20 are under the current RBHA for behavioral health services21 to the general population including individuals with22 serious mental illness?23 A. So if I understand your question correctly, what24 you're asking me is if the contract or the solicitation25 for 2013 is -- has the same requirements for all of the

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1 populations that are currently covered under our -- is it 2 the same? No, it's not the same requirements. 3 Q. And the requirements that I'm talking about, the 4 responsibilities are with respect to behavioral health 5 services. 6 A. Okay. So you are asking me has there been a 7 change to the behavioral health services component of 8 that. 9 Q. Yes.10 A. I don't know. I haven't broken it out that way11 to think about that. But I would -- most of the12 requirements would be similar, if not the same.13 Q. Okay. Maybe I'm making this too simplistic, but14 isn't the only change here the integrated care aspect in15 the new 2013 RBHA?16 A. I can't say that for sure. I haven't -- like I17 say, I haven't dissected it that way. There may be other18 changes that are applicable to the behavioral health side19 that are changes from our current contract with the RBHA.20 Q. But you can't address those --21 A. I haven't thought about it, no.22 Q. You mentioned a few moments ago about there being23 a new element to this 2013 RBHA. What was that new24 element that you were referring to?25 A. It's the provision of integrated care to the SMI

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1 Title XIX Medicaid population. 2 Q. Okay. And with respect to that, what training 3 have you received? 4 A. I've received no formal training on that. 5 Q. Would it be safe to say since this was your first 6 time working as an evaluator, that you had no prior 7 expertise in scoring? 8 A. Correct. 9 MR. RAY: Counsel, I think that misstates10 the record. I think she did say she had prior experience11 as an evaluator.12 MS. MANJENCICH: She's already asked, Judge.13 MS. PREMEAU: Answered.14 JUDGE MIHALSKY: You'll have a chance to15 develop that, Mr. Ray.16 BY MS. MANJENCICH:17 Q. Going back to that email advising you that you18 needed to contact or speak to someone, fill out some forms19 about conflict, I think you said -- is that correct?20 A. I was contacted via email to meet with them to21 discuss whether or not I had a conflict, yes. There22 probably were forms, but I don't recall what the forms23 were.24 Q. Okay. Do you remember when this meeting was?25 A. I believe it probably was in January of this

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1 year. 2 Q. Of this year? 3 A. Yes. 4 Q. 2013? 5 A. Yes. 6 Q. Who did you meet with? 7 A. I believe it was Richard Szawara -- I'm probably 8 saying that wrong. Sorry. And Chris Ruth. I'm not sure 9 the other people who were in the room.10 Q. Were there any other evaluators or potential11 evaluators there?12 A. Yes.13 Q. How many of them? All of them?14 A. I don't -- No, not all of them. So there15 probably were three other or four other.16 Q. Where did this meeting take place?17 A. In the 1740 building.18 Q. What building is that?19 A. It's -- The Department of Health Services has20 two primary buildings that they refer to as 150 and 1740,21 and it's the 1740 building.22 Q. Okay. And do you remember what was discussed at23 the meeting?24 A. There -- not everything, but in general, the25 meeting was to talk about whether or not there were any

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1 conflicts of interest that I might have, relationships 2 that I have, financial relationships, et cetera, with any 3 of the potential bidders. 4 Q. Was that information disclosed orally, in front 5 of everybody? Were you asked on a one-to-one -- Tell me 6 how that all happened. 7 A. I'm sorry. What's your question? 8 Q. My question is, you know, how was that 9 information obtained? Did you write it down? Did you10 have to talk in front of the group?11 A. I can't remember if we filled out something in12 advance or if we filled something out there. I can't13 remember if we had a conversation about that. I just know14 that that was the intent of that meeting and what I had15 shared either via writing or orally.16 Q. Did you share any conflict of interests?17 A. No.18 Q. Were you given a name or a group of names of19 companies or bidders that they were looking at of whether20 or not you had a conflict of interest?21 A. I don't recall. I'm sorry.22 Q. Was your boss Mr. Nelson there too?23 A. Not at the meeting that I had attended, no.24 Q. And at this meeting, were you told what type of25 information they were interested in?

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1 A. I probably was told that. I don't remember 2 precisely the areas that were covered. 3 Q. Other than the topic of conflict of interest, was 4 anything else talked about? 5 A. I don't recall. 6 Q. Do you remember any discussion about the duties 7 of an evaluator at that meeting? 8 A. It may have been that, but I had -- the duties of 9 evaluator information had been shared at more than one10 meeting, so I don't remember where it was all shared, if11 it was shared multiple times or if it was this and -- I12 can't say definitively it was shared at this meeting.13 Q. With respect to the information that was provided14 to you about the duties of an evaluator, tell us what you15 were told.16 A. I don't recall what I was told related to the17 duties of being an evaluator. I know that at some point18 in time -- at more than one point in time, before we19 actually met together as evaluators, information was20 shared with the evaluators about what their role was and21 what their responsibilities were and there was a written22 form that was handed out and reviewed with us.23 Q. And as you sit here today, what was your24 understanding of what your obligations were going to be as25 an evaluator?

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1 A. My understanding of what my responsibilities 2 would be, would be to review the solicitations, to do that 3 in an unbiased way, and to apply the approach that had 4 been provided through the procurement office in terms of 5 how we were going to be evaluating the solicitations. 6 Q. So with respect to the approach, that was a 7 written document provided to you? 8 A. Yes, at some point. I don't know if it was at 9 that meeting or not.10 Q. What was the approach?11 A. Can I look at the scoring tool or the -- I'm sure12 there probably were instructions. Can I look at the13 instructions that were provided to us?14 Q. Sure. We'll see if we can --15 A. I'm not going to be able off the top . . .16 MS. MANJENCICH: Is that Exhibit 33?17 BY MS. MANJENCICH:18 Q. Do you feel that you need to take a look at this19 written document in order to provide us this information?20 A. Actually, is there the information sheet that was21 provided to the evaluation committee?22 MS. MANJENCICH: Number 63? I believe so.23 JUDGE MIHALSKY: Whose exhibit is that?24 MS. MANJENCICH: 33.25 MR. JOHNSTON: Joint 33, Your Honor.

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1 MS. MANJENCICH: And we are on Bates 2 stamp 63. 3 BY MS. MANJENCICH: 4 Q. Is that what you're speaking of, Ms. Ault? 5 A. Yes. 6 Q. So what was the approach? 7 A. The approach was that we were to have read the 8 entire RFP before -- or I'm sorry. We would have to read 9 the entire proposal before we would review -- I don't know10 if that's in there. The evaluation criteria would be11 based on and broken out method of approach and experience12 and expertise.13 Q. Anything else?14 A. Maybe it's just on that one page. As I said15 before, the proposal evaluations must be consistent,16 impartial, fair, equitable, and comprehensive. I talked17 about the fairness part. The proposal is consistent with18 the RFP evaluation criteria, no other criteria or19 information can be considered.20 Q. What? I'm sorry.21 A. No other criteria or information may be22 considered other than what was in the RFP evaluation23 criteria. That the committee members first independently24 review each proposal in its entirety. And that we as25 evaluators indicate the quality of each finding in the

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1 proposal as a strength, weakness, or deficiency. 2 Q. Okay. You've gone through Exhibit 33. Can you 3 put all that in your own words? 4 A. My own words were that -- would be that we were 5 asked to, from the -- to review the solicitation to 6 understand what the solicitation requirements would be, 7 and then our -- we were asked to review in totality -- 8 each offer in its totality prior to the review. That we 9 review those in a fair and impartial way and consistent10 way. That we would be evaluating on two primary areas11 which was experience and expertise or method and approach12 and that we would be specifically identifying areas of13 strength, weakness, or deficiency.14 Q. If we break that down, one thing you indicated,15 that you needed to read the entire bid proposal?16 A. Yes.17 Q. Was that for all the bidders?18 A. Yes.19 Q. How many bidders were there?20 A. Five.21 Q. Did you do that?22 A. Yes, I did.23 Q. Do you have an idea how many pages that involved24 of reading?25 A. Thousands.

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1 Q. And someone earlier this morning, and I'm sure 2 you heard that, in the next room as we were listening to 3 that testimony, but did you read these bid proposals from 4 A to Z? 5 A. From A to Z. 6 Q. How long did that take you? 7 A. I don't know how long it took. It took a long 8 time. It was a lot of time -- of at-home time because I 9 didn't have enough time in the day to be able to do, you10 know, the review of those documents.11 Q. When did this process begin for you?12 A. I don't remember the exact day, but it was13 somewhere in the beginning or mid-January. Somewhere14 around that time frame. As soon as I got the disk full of15 offers, I began the review process.16 Q. And were all the offers on one disk?17 A. No.18 Q. So how many disks did you get?19 A. I believe there were five disks and there may20 have been others that followed. I'm not -- I can't21 recall.22 Q. Do you recall how the disks were separated?23 A. The disks were separated by the solicitation24 itself and the name of the vendor.25 Q. So did some vendors require more than one disk?

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1 A. Again, I can't remember whether there was an 2 additional disk provided by one of the vendors. I don't 3 remember what the circumstances were of that. I don't 4 even remember who the vendor was. But all of the 5 solicitations were on one disk, but I think that there was 6 an amendment to one of the ones that was sent to us, but 7 I'm not sure. 8 Q. Did you have a deadline for going through all 9 these disks?10 A. The deadline was based upon our meeting time that11 we scheduled as a group. It was a consensus process. So12 those individuals who were also evaluators, we had been13 meeting, you know, to discuss the solicitation. So before14 we could begin discussions, there -- we would need to have15 reviewed and completed the review of that whole16 solicitation.17 Q. So was there a deadline of when everyone needed18 to be done reviewing these materials?19 A. No, there was no specific deadline set to that.20 Q. With respect to these meetings that you had as a21 group, when were they scheduled?22 A. Again, I don't -- I don't know the specific dates23 but I believe that they were toward the end of January.24 Q. When the entire group began to meet together?25 A. Meet, yes.

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1 Q. Okay. So you started the review process around 2 the middle of January and then these group meetings began 3 at the end of January. Is that your testimony? 4 A. I started my individual review prior to when the 5 group as a whole began to meet. I don't know the exact 6 dates. I'm estimating that it was around mid-January in 7 terms of -- mid- to early January when I first got the 8 disks and then later in January when we began review. 9 Q. Okay. And I believe your testimony is that10 initial conflict of interest conference was right around11 January 4th. I think that's what you said. Is that12 right?13 A. I don't think I gave a date.14 Q. Okay. Do you know when that meeting was?15 A. No, I don't.16 Q. But it was in January?17 A. I thought -- I think I estimated it was in the18 beginning of January.19 Q. Do you know how many additional meetings you had20 concerning the process prior to actually being provided21 the disks and beginning your work?22 A. No, I don't.23 Q. Do you remember how much time you spent on24 reviewing these bid proposals, all five of them?25 A. I couldn't give you an hour. I wasn't clocking

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1 my time, so to speak, or tracking it in that way. 2 Q. You were not? 3 A. No. 4 Q. Can you give me an estimate? 5 A. I have no idea. It was over the span of several 6 weeks in terms of -- and that was weekends, it was at 7 night, it was during the day at work as well. I can't 8 give you an estimated ballpark of number of hours spent. 9 Q. You did spend some work hours doing that process,10 correct?11 A. Correct.12 Q. And just because I don't know and that's why I'm13 asking you, you indicated -- I guess because you're14 spending some work hours, are you being excused from your15 normal duties at work in order to be the evaluator?16 A. This was the priority, yes.17 Q. Okay. So would it be safe to say, then, from the18 time you got the disks that your workday essentially was19 being used to look at these bid proposals?20 A. Primarily.21 Q. Were you also doing other things?22 A. There were other things that would come up that I23 would need to take care of, yes.24 Q. All right. So you had interruptions?25 A. Yes.

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1 Q. Were you being paid for the work you were doing 2 in being an evaluator? 3 A. Nothing outside of what I'm normally paid for in 4 my position. 5 Q. Okay. And so that called for you working nights 6 and weekends as well? 7 A. Yes. 8 Q. Do you recall spending more time on any bid 9 proposal over the other?10 A. I wouldn't be able to break it down like that in11 terms of one more than another, so I couldn't tell you12 that for sure.13 Q. Does one stand out in your mind that you spent14 more time reviewing than another?15 A. No.16 Q. Would it be safe to say that you feel you've17 spent about the same amount of time on each bid proposal?18 A. I can't say that for sure because I don't know19 what the number of pages were that needed to be reviewed,20 et cetera. So I can't give you an estimate of that. I21 spent the amount of time that was necessary to review all22 of the documents.23 Q. To review it from the beginning to the end?24 A. Correct.25 Q. I just want to go back to the meetings that you

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1 had before receiving these disks. And what I -- what 2 we've put up is Joint Exhibit Number 33, Bates-stamped 59. 3 It is a memorandum dated January 8, 2013, and this is a 4 document that has been entered into evidence. 5 It indicates, in the very first paragraph, 6 that a meeting was held with potential evaluation 7 committee members on January 2nd and the 7th. 8 Does that help remind you about the dates of 9 the meetings that you participated in before being10 selected as an evaluator?11 A. Yes, to the extent that it was either January 2nd12 or 7th, I would assume. But beyond that, no, it doesn't.13 Q. Okay. And do you know whether you just went to14 one of them or you went to both of them?15 A. There was just one that I attended.16 Q. Okay. And as far as the participants that were17 there, the people that were there, does that sound18 familiar to you?19 A. Yes.20 Q. Would it be safe -- and they are Richard Szawara,21 the procurement consultant, the procurement officer22 Rebecca O'Brien, and the chief procurement officer23 Christine Ruth, correct?24 A. That's correct.25 Q. According to this memorandum, it indicates then

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1 the list of names who have been appointed as evaluators 2 for this RBHA, correct? 3 A. Yes. 4 Q. Okay. And we've already talked about 5 Mr. Nelson -- I think he's listed first -- and you 6 indicated that was your boss. Your name's second. Sheila 7 Sjolander. 8 A. Sjolander. 9 Q. Who's that?10 A. She's an assistant director with the public11 health area.12 Q. You work with her?13 A. Only collaterally.14 Q. Cynthia Layne?15 A. Correct.16 Q. Who does she work for?17 A. She worked for Cory Nelson for the Division of18 Behavioral Health Services.19 Q. She has the same supervisor that you do?20 A. Correct.21 Q. Kathy Bashor?22 A. Kathy Bashor.23 Q. Thank you.24 B-a-s-h-o-r. And who is she?25 A. She manages our Office of Individual and Family

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1 Affairs with the Division of Behavioral Health. 2 Q. Okay. You work with her too? 3 A. Yes. 4 Q. And then there's Kristine [sic] Frounfelker? 5 A. Kristin Frounfelker? 6 Q. Yes. 7 A. Yes. She, at that time, was the behavioral 8 health administrator for AHCCCS. 9 Q. And what does she do now?10 A. She is the assistant director for the Division of11 Behavioral Health Services.12 Q. Victoria Navarra, she's with your department as13 well?14 A. She's with the Division of Behavioral Health,15 yes.16 Q. It indicates she's a compliance manager.17 A. Right now she's not in that capacity. She's with18 the Office of Healthcare Development.19 Q. Okay. But at that time, she was?20 A. I -- I don't know when any changes may have21 occurred to the organizational chart. But she was working22 on the solicitation from -- and I don't know if they23 eventually became the Office of Healthcare Development --24 I'm not sure what the timing was on that.25 Q. Okay. But you worked with her?

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1 A. Yes. 2 Q. And I guess you were in the compliance area, 3 she's in the compliance area? 4 A. Not at the same time. But, yes, she was in the 5 compliance area and then was moved over to the Office of 6 Healthcare Development at some point. And I just recently 7 was assigned to oversee the compliance area in July of 8 this year. 9 Q. And then Teresita Oaks?10 A. Correct.11 Q. That's another person in your department?12 A. Actually, this is a person in the Office of13 Healthcare Development as well. But, again, I don't know14 when that change over the -- of the organizational chart15 changed.16 Q. That's somebody that works the same place you do?17 A. She works with the Division of Behavioral Health,18 yes.19 Q. Okay. Is it your testimony that after the20 selection is when you received your disks containing the21 bid proposals?22 A. Yes.23 Q. Do you know if everybody got their disks at the24 same time?25 A. I can't speak to that.

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1 Q. You don't know? 2 A. I don't know. 3 Q. How did you receive yours? 4 A. I think they were hand-delivered, but I can't 5 remember. 6 Q. Okay. Now, other than Exhibit 33, the evaluation 7 committee guidelines that we've been through just a little 8 while ago, any other guidelines that you were provided in 9 writing that gave you some direction of what you were to10 do in your evaluation concerning this RBHA?11 A. I don't recall.12 Q. None other than this one?13 A. I know that we were given that one. I don't know14 if there was something different or additional.15 Q. Now, when you were given Exhibit 33, that we've16 just gone over, Bates-stamped number 63, was that at a17 meeting?18 A. Again, I believe that that document was handed19 out more than -- on more than one occasion, so I can't20 remember those specific occasions they were handed out.21 Q. Would you agree that anytime this document was22 handed out and given to the evaluators, that the23 procurement file would accurately reflect when that24 occurred?25 A. I couldn't speak to that.

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1 Q. Okay. You've never taken a look at the 2 procurement file or the documentation there? 3 A. No, not for -- No. I would have no purpose for 4 doing that. 5 Q. During the meetings or whenever your duties were 6 discussed, did you take any notes down for yourself? 7 A. Yes. 8 Q. And did you keep those notes? 9 A. No, I did not.10 Q. You discarded them?11 A. Yes.12 Q. And when did you do that?13 A. After the -- after we met as a team to do our14 consensus process -- actually, my own personal habits were15 to -- after we did that, I would eliminate the -- my -- my16 notes -- get rid of my notes from that day because they17 were my own thoughts in terms of talking points or that18 type of thing for purposes of communicating within the19 group. But once we had that consensus process, there was20 a different way of documenting our collective impressions,21 and so that's what we used to document our collective22 impressions.23 Q. Okay. We'll talk about that in a minute. Let's24 stay to right now the guidelines that you were provided,25 the directions that you were given concerning what your

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1 duties were as an evaluator. Okay? 2 A. Uh-huh. 3 Q. So prior to you beginning to look at these disks, 4 you did take notes down of what guide -- what you were 5 told you needed to do as an evaluator? 6 A. Oh, no. 7 MR. RAY: Objection. I don't think that's 8 the testimony. 9 MS. MANJENCICH: That was a question mark,10 so she can --11 JUDGE MIHALSKY: Okay.12 THE WITNESS: No. I did not take notes13 on -- for myself around what was expected in terms of an14 approach as an evaluator, no.15 BY MS. MANJENCICH:16 Q. Going back to Exhibit 33, Bates-stamped 63, was17 it your understanding that you were not to consider any18 information about any of the bidders other than what was19 in the bid proposal?20 A. Yes.21 Q. So tell me what that meant to you?22 A. What that meant is that we were, as an evaluation23 committee, responsible for staying within the four corners24 of the document, so to speak. That any other25 considerations outside of that would not come into play.

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1 Q. So would it be safe to say that you could not 2 consider any prior experience that you had with any of the 3 bidders? 4 A. Yes, that's correct. 5 Q. Or any knowledge of their work or performance 6 under a contract, you were not to consider that? 7 A. Not unless it was contained in the four corners. 8 Q. With respect to that criteria, was that also 9 something that was discussed in the pre-evaluation10 meetings about your duties?11 A. I believe that was discussed on more than one12 occasion, probably discussed in the pre-evaluation piece,13 but certainly was discussed on our first meeting where we14 convened as an evaluation committee before we began any15 work.16 Q. And do you recall what specifically was said with17 respect to considering prior experience, work experience,18 for example, Magellan's, as current RBHA?19 A. Again, my recollection -- I don't know the exact20 words that were stated, but my recollection is that21 anything other than what was contained in the solicitation22 would not be considered.23 Q. Who was -- do you know who was saying this or who24 was providing this --25 A. I believe it was Richard Szawara.

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1 Q. So just so I understand, if information was 2 contained in the four corners of a bid proposal, were you 3 allowed to then consider it? 4 A. To consider the information that was in the 5 solicitation, yes. 6 Q. Yes. 7 A. The offer, yes. 8 Q. And if you then add some personal knowledge of 9 something in the four corners of the bid proposal, did you10 use that knowledge in making your evaluation?11 A. No, I did not.12 Q. You indicated, I believe, previously that13 concerning the area that you were going to be evaluating,14 it was -- I'm looking at number 5 here -- you mentioned15 Method of Approach, Experience and Expertise, correct?16 A. Correct.17 Q. Were you told not to consider compliance with the18 solicitation requirements?19 A. My understanding was that the compliance with the20 solicitation requirements would be handled through the21 procurement office in terms of seeing who would be22 susceptible to award is I think the terminology they used.23 Q. What does that mean?24 A. I think -- for me, it would be a guess of all of25 the pieces of it. But basically, I think there are some

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1 basic requirements that every offeror had to meet in order 2 to even be eligible to be considered. 3 Q. Do you know what those were? 4 A. I don't know. I wouldn't be able to tell you all 5 of them, no. 6 Q. Can you give me any of them? 7 A. I think that they had to put up certain amount of 8 cash as -- I don't know what it's called either, I'm 9 sorry. I can't think of what it's called.10 Q. Anything else?11 A. Not right at this moment.12 Q. Know anything about any insurance requirements?13 A. I'm sure there probably are insurance14 requirements, too. But this isn't -- you know, this isn't15 my -- I don't -- as an evaluator, my role came in when --16 you know, with a solicitation that somebody else had17 already determined was susceptible to award and to review18 the four corners of that document to evaluate the quality19 of that bid proposal.20 Q. And compliance was not one of those areas that21 you, as an evaluator, was asked to look at, correct?22 A. Compliance with it, no. Correct.23 Q. So the only parts that you, as an evaluator on24 this proposal, you were only to look at these two areas,25 Method of Approach, Experience and Expertise, correct?

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1 A. Correct. 2 Q. And those were the only two areas that you were 3 going to be scoring, correct? 4 A. Correct. 5 Q. And it was your understanding that actually the 6 scoring on the final one and the review of that 7 information was going to be done by the procurement 8 office? 9 A. Can you repeat that question? I don't understand10 what --11 Q. The third component here of the criteria, the12 compliance, it was, I believe, your testimony that it13 was -- you were advised that that section was going to be14 handled by the procurement office?15 A. Correct.16 Q. Do you know who in the procurement office?17 A. No, I don't.18 Q. Are you familiar with the procurement code?19 A. I'm familiar that there is a procurement code,20 but I'm not familiar with all of the elements of the21 procurement code, no.22 Q. Have you ever read it?23 A. No.24 Q. Now, according to -- I'm looking at Bates stamp25 number 63, the first paragraph there. It indicates --

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1 MR. RAY: What page? I'm sorry, it's on 63. 2 MS. MANJENCICH: 63. 3 MR. RAY: Thank you. 4 BY MS. MANJENCICH: 5 Q. Starting with the second sentence, "All committee 6 members will first independently review each proposal in 7 its entirety, considering the offer in relationship to the 8 RFP, and develop preliminary findings and questions/issues 9 related to each proposal," correct?10 A. Correct.11 Q. And did you do that?12 A. Yes.13 Q. As you were looking at these proposals, were you14 taking any notes?15 A. Yes.16 Q. And did you -- did you have one notebook, one17 notebook per bidder? How did you -- did you separate your18 notes per bidder? How did you do that?19 A. Because I reviewed one -- one bid at a time, all20 of the notes from that particular bid would be together.21 And my form of choice happens to be kind of like a high22 school little notebook, and that's where I would basically23 document any kinds of things that I wanted to have24 discussion with the evaluation committee as a whole.25 Q. Do you remember, did you fill a notebook with

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1 questions or issues? 2 A. Over the course of all of the bids, I'm not 3 sure -- no, I don't -- I don't know that I filled up the 4 whole, entire notebook, but . . . 5 Q. And I believe your testimony is then you took the 6 notebook with you when you had your group sessions, 7 correct? 8 A. Yes. 9 Q. Prior to the group sessions, did you discuss any10 of these bids with anyone else?11 A. No.12 Q. Did you -- When you were reviewing the bids at13 work, would you do that -- and I'm not familiar with your14 office or how your desk is situated -- but were the people15 that you work with, Mr. Nelson, was he -- did you observe16 him looking at the bids too?17 A. No. He works on the fifth floor, and I work on18 the second floor.19 Q. All right. Did you see anybody else on the20 committee, that worked with you in your department,21 looking or reviewing bids?22 A. No. I have an office that is pretty isolated.23 Q. Okay. Now, the next paragraph talks about24 assigning a score. And it talks about -- and you25 mentioned this -- strength, weakness, or deficiency. Do

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1 you see that in the next paragraph there? 2 A. Yes. 3 Q. Tell me what was considered standard? 4 A. What was considered standard? 5 Q. Sure. 6 A. I'm not sure I understand your question. 7 Q. Well, this seems to be that there has to be some 8 middle ground, and then there's pluses for strengths and 9 minuses for weaknesses or deficiencies. Is that the way10 you read this or --11 A. Can you go to the tool itself? Because we12 were -- we used the tool -- the language from the tool was13 what we had used in identifying whether it was a strength,14 weakness, or deficiency. On each of the pages, there's a15 header that talks about the definition of those terms, and16 that's -- that's what we used.17 Q. Okay. Would it be safe to say then there18 wasn't -- I guess with respect to those subcategories, did19 the standard change depending on what category you were20 on?21 A. I'm sorry.22 Q. I guess did each one have its own standard that23 you were to consider then whether there were strengths or24 weaknesses? Was there a minimum?25 MS. FLORES: Could we just scroll down on

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1 the page because it actually discusses the strengths, 2 weaknesses, and deficiencies right there. 3 THE WITNESS: Okay. 4 MS. PREMEAU: Thank you. 5 MS. MANJENCICH: Thanks for helping. 6 MS. FLORES: You're welcome. 7 THE WITNESS: So the -- This is what the 8 committee used as the criteria, strength was "a 9 characteristic in an offer that exceeds the minimum10 standards of the solicitation and is exceptional."11 Exceptional is really something that we were looking for,12 something that went above and beyond what the standard13 was. "Exceptional is extraordinary, excellent, well above14 average."15 So weakness was "a flaw in the proposal that16 may increase the risk of unsuccessful contract17 performance."18 And the deficiency was the "material failure19 of a proposal to meet a solicitation requirement or a flaw20 that materially increases the risk of unsuccessful21 contract performance."22 Q. So was there an understanding what the average23 was or the standard?24 A. The standards themselves were set forth in the25 solicitation itself, right. So you had to meet that.

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1 But in addition, there was a consideration 2 given by the committee is if -- it was pretty much done 3 across the board -- if it wasn't something that was -- you 4 know, if it was average, if all the other bidders were, 5 you know, doing that type of thing, we also looked at 6 that -- at the -- at the end when we were reconciling our 7 scoring in terms of identifying the strengths or not. 8 Q. Okay. So that came later, where you're comparing 9 one bidder with another to see whether that was kind of10 the average consensus concerning that topic?11 A. Comparing for the purposes of making sure that we12 were being fair in our approach in terms of scoring, yes.13 Q. Was there one bidder or more that you were using14 as the average or were you looking at all of them and15 comparing across the board?16 A. I'm not sure I understand what your question is17 with that.18 Q. Well, when you're utilizing one bid against the19 other, are you just looking at two? Are you looking at20 all five of them?21 A. No. We weren't looking -- we were looking at the22 end to compare across all five to ensure we had23 consistency in the way we did our scoring across -- across24 all of them in terms of -- for example, one of the areas25 was around the provision of direct services, which I

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1 think, if not all, virtually all had a problem with that 2 in terms of scoring. And so we were making sure to see 3 that we were deducting the same amount of points for the 4 same -- the same weakness. 5 Q. Okay. When you indicate that was a problem 6 across the board, you're talking about the problem of 7 providing direct care services, correct? 8 A. Correct. 9 Q. And that is the RBHA being the manager and also10 the provider of care?11 A. That a RBHA employee was providing direct12 services, yes.13 Q. And why is that a problem?14 A. In the solicitation itself, there is a -- a15 provision in there that -- that specifically says that16 that cannot -- that that can't happen.17 Q. It prohibits it?18 A. Yes.19 Q. And when you -- What I understand from your20 testimony is that you were doing this comparison on that21 issue because your testimony is all five bidders had an22 issue there, and you wanted to make sure -- well, your23 group wanted to make sure, the evaluators, that they were24 fairly assigning the points across the board, correct?25 A. Correct.

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1 Q. I know you heard Dr. Temm's testimony from the 2 next room. That's what Dr. Temm indicated her review as 3 well was, checking the consistency between one bidder and 4 another. Isn't that right? Is that the kind of 5 consistency you were talking about? 6 A. The consistency I was talking about occurred 7 after we had already completed the review of all of the -- 8 of all of the offers, and we had identified preliminary 9 scoring to all of those offerors. And as we did that,10 then at the end, to ensure fairness and consistency, we11 reviewed to make sure that those similar items were rated12 similarly.13 Q. Sure. So you were looking at the points scored14 across all the bidders and comparing them to make sure15 that you were fair, right?16 A. Correct.17 Q. And that the scores that were assigned were18 consistent with one another?19 A. Correct.20 Q. Do you know why the solicitation indicated that21 providing direct services -- a RBHA providing direct22 services was prohibited? Do you know why that is?23 A. It's my understanding that that is prohibited by24 the statute.25 Q. So it's against the law?

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1 A. It's against the law. 2 Q. Do you know why? 3 A. Do I know why that -- because the language says 4 that a RBHA cannot -- and I'm just paraphrasing here -- 5 but the RBHA cannot provide direct services. 6 Q. And you certainly are aware that that law 7 changed -- and you worked at ValueOptions -- you're aware 8 that that law changed as a result of an investigation that 9 was conducted?10 MR. GORDON: Objection. Mischaracterizes11 testimony. I think she said she left ValueOptions in12 2000.13 BY MS. MANJENCICH:14 Q. Did you not have any -- you don't have any15 information about ValueOptions and the changes --16 MR. RAY: Objection.17 BY MS. MANJENCICH:18 Q. -- in the statute concerning --19 JUDGE MIHALSKY: Sustained.20 BY MS. MANJENCICH:21 Q. You heard the testimony yesterday concerning22 ValueOptions and the statute that we're talking about,23 36.3410.C, yesterday. Was that the first time that you24 heard about ValueOptions and this history of the statute25 being enacted?

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1 A. No. 2 Q. You were aware of that before yesterday's 3 testimony? 4 A. Yes. 5 Q. Going down to number 7 of Joint Exhibit 6 Number 33. Looking down right where I have the mouse 7 there, "the evaluation must also include the basis 8 (finding) for the points assigned." Is that what you 9 needed to do?10 A. Yes.11 Q. Tell me, as you were looking at these bids, were12 you writing down any thoughts, you know, concerning the13 points that you thought --14 A. No. Those weren't part of my individual notes,15 if that's what you're asking.16 Q. Yes. So would it be safe to say, when you were17 looking at the bid proposals, you were simply writing18 notes about issues?19 A. I was writing notes about issues, and I would20 asterisk those particular things that had -- you know,21 that were particularly weighty or of concern to myself.22 Q. Were the evaluators told that they needed to make23 a finding -- a basis for the points that were assigned?24 A. I believe we were told that we needed to have a25 way of identifying the basis for our decision, yes.

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1 Q. Were you advised, prior to your review of the bid 2 proposals, what the focus of your review should be as far 3 as the scope of work? 4 A. I don't understand the question. 5 Q. With respect to this new model including 6 integrated care, were you told to concentrate on the 7 behavioral health, the integrated care? Was there a -- 8 were you ever told to focus your review on any particular 9 part of the proposal?10 A. As an evaluator, I was not -- I was not advised11 of that.12 Q. Did you, as you were looking at the bid13 proposals, focus on behavioral health, your background,14 integrated care?15 A. I was looking at, you know, each of the -- all of16 the requirements. And certainly a big component of that17 was what is new to the program, which is the integration18 piece of it.19 Q. Did you feel that that was the big component of20 this new 2030 RBHA?21 A. It was a big component of it, not the big22 component of it. But it was very -- yeah, it's big. It's23 huge.24 Q. So would you say, in your evaluation, that was25 one of your key focuses in looking at these bids?

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1 A. Again, I am not saying that that was my key 2 focus. It was a focus along with all the other 3 requirements that we were looking for in the solicitation. 4 Q. You heard testimony yesterday, I know you were 5 here, that actually 80 percent of this 2013 RBHA involves 6 behavioral health. Would you agree with that? 7 A. I -- I can't tell you that. I don't know. 8 Q. I guess equally you don't know that the 9 integrated care aspect is only about 20 percent?10 MR. GORDON: Object. Mischaracterizes prior11 testimony. That's a great argument.12 JUDGE MIHALSKY: Sustained.13 BY MS. MANJENCICH:14 Q. Could you give me -- Can you give us information15 of how much of the RBHA contract involved integrated care?16 A. Are you talk -- It's a very difficult thing to17 parse out those pieces. I mean, you're actually asking me18 to desegregate something that's an integrated contract.19 So I don't know if you're talking about the20 finances of it. I don't know if you're talking about the21 contractual requirements of it. So in that sense, I can't22 answer your question because I don't have -- I don't have23 a way of doing that.24 Q. I'm focusing on the contractual obligations of25 the RBHA. Could you break that down? Behavioral health

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1 as opposed to integrated care? 2 A. Again, this is an integrated contract. I don't 3 know how to do that. I don't know how to parse out, you 4 know, how -- you know, how many of the elements are 5 related to the integrated care -- because some of those 6 same requirements apply to that same population, so I'm 7 not really sure how you -- how you do that. 8 Q. Do you know if any of the other evaluators on the 9 committee had experience in integrated care?10 A. Experience in what aspect?11 Q. Integrated care as what was sought in this 201312 RBHA contract?13 A. As in the administration of an integrated care14 model? As in the delivery of integrated services?15 Or . . .16 Q. In the oversight of the integrated care --17 management of integrated care.18 A. I believe that Kristin Frounfelker would have19 experience in her oversight role in AHCCCS over ALTCS --20 over behavioral health components of the ALTCS contract.21 Q. Anybody else?22 A. I can't speak for anyone else. I guess I23 don't -- I don't know. I didn't have that conversation24 with them.25 Q. So as far as you know, she's the only one?

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1 A. She's the only one that I know off the top of my 2 head that -- that I believe has that integrated care 3 experience. 4 Q. Did it seem during your sessions, when you would 5 be meeting together, that someone took the lead with 6 respect to the integrated care portion of the scoring? 7 A. Of the scoring, no. 8 In terms of discussion -- and again, I think 9 there were many voices that were involved with that. You10 know, we were collectively discussing all of the items.11 I think that Kristin probably was a leader12 in those conversations. At some of the points, I was a13 leader in the conversations. At some point Cory was the14 leader in the conversations. At some point Sheila15 Sjolander was it. You know, so it just kind of rotated16 depending what each person brought in terms of perspective17 to the particular area that we were reviewing.18 Q. Sure. But I'm specifically talking about19 integrated care, which you told us you did not have any20 oversight experience like this --21 A. Right.22 Q. -- current RBHA was seeking. So I'm particularly23 asking for that area.24 A. Correct. And I -- I'm explaining that even25 though I may not have that experience, I certainly knew

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1 what the requirements were under the solicitation, and had 2 the ability to compare what was being required under the 3 solicitation and compare that to what the bid was to make 4 judgments around, you know, areas that I thought were 5 weaker or stronger or what have you. 6 Q. Didn't the scope of work request narrative 7 responses? 8 A. I'm sorry, I don't understand your question. 9 Q. Of how you arrived at the score -- or your10 findings.11 A. Can you repeat the whole question so I can12 understand what it is?13 Q. With respect to looking at integrated care,14 didn't the scope of work require narrative responses to15 that?16 A. Yes.17 Q. Didn't it require co-locations?18 For example, didn't -- it didn't require19 co-locations, correct?20 MR. GORDON: I object to questions on a21 document without putting the document in front of her.22 This isn't a memory game.23 JUDGE MIHALSKY: If you're referring to a24 specific document -- this is a voluminous file. So with25 any witness, if you're going to question the witness about

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1 a specific document, it would expedite the hearing to call 2 the witness's attention to the document. 3 MS. MANJENCICH: Thank you, Judge. 4 BY MS. MANJENCICH: 5 Q. While we're waiting to bring up that document, 6 Ms. Ault, did you have any prior experience with any of 7 the bidders other than Magellan? 8 A. Yes. 9 Q. Who?10 A. I don't remember all the bidders here. But I had11 experience with United, had experience with CPSA, Banner12 Health.13 Do you have a list of the -- can I look at14 the list of the bidders?15 Q. How about MMIC?16 A. I had no experience with Mercy and no experience17 with MIH -- MIHS really.18 Q. Have you ever worked for Eddie Broadway?19 A. Yes.20 Q. Where?21 A. At the Division of Behavioral Health Services.22 Q. With respect to your prior experience with23 Magellan, how would you describe it? Good? Bad?24 A. As far as what?25 Q. Your working relationship with Magellan?

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1 A. My working relationship with Magellan I think is 2 good. 3 Q. We are now -- We have on the screen Magellan 4 Exhibit 330, Bates stamp 1. If you take a moment here and 5 look at 11.5? 6 A. Okay. 7 Q. I'm referring you to 12.2.1, which is on page 52 8 of 330, also Bated 52. 9 MR. RAY: Before you ask the question, I'm10 going to object. I don't believe that is part of your11 protest.12 MS. PREMEAU: Your Honor, if I may. The13 idea was to provide an illustrated example, just a random14 example, of the criteria that Ms. Ault was testifying to15 and to illustrate the narrative aspect of responses that16 come forth. And so then she can testify as to how they17 scored the narrative responses based on her prior18 testimony.19 MR. RAY: Why don't you utilize an example20 that is relevant to this proceeding? I mean, we're21 talking thousands and thousands of pages, and you're going22 to ask her about something that doesn't show up on the23 protest or the tool that was used to score. I think24 that's out of bounds.25 JUDGE MIHALSKY: The objection is sustained.

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1 I think this is a good time for a break. 2 We're going to take 15 minutes. On my watch, I have 2:39, 3 so we will be back on the record at 2:55. 4 (A recess ensued.) 5 JUDGE MIHALSKY: We're back on the record. 6 You may proceed with your examination of Ms. Ault. 7 MS. MANJENCICH: Thank you. 8 BY MS. MANJENCICH: 9 Q. Ms. Ault, we're going to move to the scoring.10 Okay?11 A. Okay.12 MR. RAY: I apologize, Counsel. Did you ask13 a question? I wasn't quite ready.14 MS. MANJENCICH: I didn't yet. I just said15 we're going to move on to scoring.16 MR. RAY: Okay.17 BY MS. MANJENCICH:18 Q. Okay. On the issue of scoring, I understand that19 you were going to use consensus scoring with respect to20 this contract?21 A. That's correct.22 Q. Okay. Can you tell us how that works?23 A. The -- What we did as a committee was work24 through section by section the solicitation. We would25 share things that we saw as positives, negatives,

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1 strengths, weaknesses, and potential deficiencies in each 2 of the proposals. 3 Q. And how was a consensus reached? 4 A. The consensus was reached, we would dialogue 5 about the particular -- the particular section, and the 6 consensus would be where we were all in agreement around 7 whether or not something was a strength, a weakness in the 8 proposal, or a deficiency. So for each section that's 9 what we -- that's how we approached it.10 Q. Okay. So just so I understand. And what we put11 up was Joint Exhibit Number 33, Bates stamp 30. This is,12 I guess, your scoring tool, right?13 A. Correct.14 Q. And what your testimony -- and correct me if I'm15 wrong -- is that you went section by section and then your16 group made a determination of whether there was a17 deficiency, whether there was a plus, adding points,18 taking away points, or, I guess, doing neither/nor. Is19 that right?20 A. Ultimately, yes. That's -- that is what we did.21 Q. Okay. And was the first consensus to agree which22 one you needed to do? Zero, plus, or minus?23 A. I don't -- I don't recall how we made the24 decision of which was going to go first.25 Q. I'm sorry, I don't understand your answer.

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1 A. Then maybe I don't understand your question. 2 Q. Okay. What I -- It's getting late. 3 What I understand is the first thing the 4 group decided was looking at the criteria and looking at 5 the bids, you determined whether that bidder deserved a 6 plus in points, zero points, or had points deducted for 7 that bidder. Was that your testimony? 8 MR. RAY: Let me just object to that. I 9 think her testimony was points added, points taken away,10 or -- with your question -- or neither. And I think11 that's what she testified to.12 MS. MANJENCICH: I thought that's what I13 said.14 MR. RAY: That's different than what you15 just said. Sorry, I don't mean to be argumentative,16 Counsel.17 MS. MANJENCICH: Oh, no.18 MR. RAY: I apologize.19 MS. MANJENCICH: I didn't think so.20 JUDGE MIHALSKY: Mr. Ray summarized the21 testimony. I don't know if that was the same thing that22 you said?23 MS. MANJENCICH: I thought it was, but I24 don't know. I thought it was exactly what I said.25

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1 BY MS. MANJENCICH: 2 Q. But, Ms. Ault, I'm trying to find -- we're just 3 trying to find out here how this system worked. Okay? So 4 everybody's in the room, correct? All eight of you? 5 A. Correct. 6 Q. And once everybody reviewed all of the bids, then 7 everyone starts talking about the scoring and starts 8 utilizing the tool, correct? 9 A. What -- the approach that the committee took was10 to -- for each of the bids independently, go through11 section by section and identify areas of strengths, areas12 of weakness, or, you know, areas of concern. And at that13 point, we had not -- we had not identified points --14 allocated points to that.15 Q. Okay. Fair enough.16 So you're taking each bidder separately,17 correct?18 A. Correct.19 Q. Who did you take first?20 A. I believe we took MMIC first.21 Q. Do you know why MMIC's bid got to go first?22 A. No, I don't.23 Q. Which bid was last?24 A. I don't remember which bid was last.25 Q. If I told you it was Magellan, would that help

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1 refresh your memory? 2 A. Doesn't help me one way or the other, because I 3 don't -- I don't recall. It was a long process. 4 Q. So as you're going through each bidder, looking 5 whether there's strengths and weaknesses or deficiencies, 6 are you taking notes? 7 A. There were notes being taken at a -- I can't 8 remember if it was by Richard Szawara or one of the 9 persons from the procurement office who was helping to10 facilitate the committee in terms of writing up on, you11 know, what areas -- it may have been done via a computer12 with one of the procurement people. I know that it was13 documented as we went along. The medium for the14 documentation, I can't remember if it was via a15 computer-entered note about areas that we had identified16 as positive, negative, or what have you, or if it was -- I17 think sometimes we'd even put it up on a board.18 Q. So if I understand, Mr. Szawara is present during19 these times that the committee was together discussing20 strengths and weaknesses for each bidder?21 A. Correct.22 Q. And was he there all the time?23 A. Yes.24 Q. Anybody else from procurement in the room with25 the eight of you?

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1 A. Yes. 2 Q. Who else? 3 A. Becky O'Brien. 4 Q. Anyone else? 5 A. No. From procurement you mean? 6 Q. Or any -- someone other than the eight of you? 7 A. No, I don't think so. 8 Q. Are you not sure? 9 A. Well, there was somebody who would occasionally10 come in and bring some treats during a break. Other than11 that, no.12 Q. They're not here today, are they?13 A. No, unfortunately.14 Q. They might be, I don't know.15 A. Maybe they brought the little treats here.16 Q. All right. So as far as the eight of you, you're17 not sure whether there were any notes taken, as far as18 your group of evaluators, concerning the strengths and19 weaknesses for each bidder for each section. Is that20 correct?21 Ma'am, I don't know if the answer is over22 there. But if you don't know, just tell me you don't know23 and we can move on.24 A. I thought I had already explained that the notes25 were being taken from our collective agreements around our

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1 discussion. So when we -- as we were discussing, those 2 notes would get populated into the various sections. 3 Q. All right. And was it Mr. Szawara taking these 4 notes? 5 MR. RAY: Asked -- Judge, I believe she's 6 already answered. She thought it was, but she's not sure. 7 JUDGE MIHALSKY: I believe she has. 8 MS. MANJENCICH: All right. My prior 9 question was whether one of the eight of them. And10 Mr. Szawara was not one of the eight.11 JUDGE MIHALSKY: She's testified there's12 collective notes. And if you want to know about13 individual notes, I don't believe you've asked that14 question.15 MS. MANJENCICH: Thank you, Judge.16 BY MS. MANJENCICH:17 Q. With respect to the notes that were taken during18 these sessions where weaknesses and strengths were looked19 at and documented, were they documented in this form, in20 some way without giving points or in some other format?21 MR. RAY: Again, this is Mr. Ray. And I22 don't mean to interrupt except to say can we say what the23 document is that she's referring to for the record? She24 keeps saying in this --25 JUDGE MIHALSKY: I believe she did identify

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1 it at the beginning of her question as Joint Exhibit 33, 2 and we're looking at page 30. 3 MR. RAY: That's fine. But I think she's 4 asked a bunch of different questions, and I just didn't 5 know if this is what we're getting back to. 6 JUDGE MIHALSKY: That is what you're 7 referring to? 8 MS. MANJENCICH: Yes, Your Honor. 9 JUDGE MIHALSKY: Okay.10 MR. RAY: Thank you.11 THE WITNESS: I believe that Becky O'Brien12 was taking notes of the collective group onto a computer13 that was -- we could see up on the -- you know, it was14 projected onto the wall, right?15 And I believe that it was, if not this16 version, a similar version of this structure in terms of17 it had the same pieces to it, but obviously wasn't this18 particular document. This one is the final one. But a19 draft version of that.20 BY MS. MANJENCICH:21 Q. And at that time when Ms. O'Brien is taking down22 the information and it's appearing on that overhead23 screen, are there any points being given under each24 section?25 A. Not initially, no.

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1 Q. So how were the strengths, weaknesses, or 2 deficiencies documented? 3 A. They were documented in the particular sections 4 that they were -- they were in. 5 So, for example, under Method of Approach, 6 under strengths, if there was a particular section or area 7 that we identified as strength, it would be identified 8 there in the evaluation findings. 9 Q. In what way? Because we don't have points. So10 how do you know that you discussed strengths versus11 weaknesses versus deficiencies? How was that documented?12 A. Because there's a strengths section and there's a13 weaknesses and deficiencies section.14 Q. Okay. Go back up. Here at the first one,15 section 1.3, 4.9, it indicates three points were given. I16 believe your testimony is that initially looking at that17 section, you're first simply looking at the strengths or18 weaknesses. Are you marking anything down to refresh your19 memory later when you're attributing a point down for that20 section?21 A. I think that there -- and I don't remember22 exactly how we did this -- but there was some way of23 identifying -- like a token way of identifying if24 something was particularly strong or particularly weak.25 But beyond that, we didn't go into any scoring at that

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1 point -- assigning the particular final score. 2 Q. You didn't assign a number, but there was some 3 way that -- there was some notation made, a token, that 4 you would be able to recall later when your group got 5 together to assign a point score? 6 A. Correct. 7 Q. But you don't remember how that was done? 8 A. No. 9 Q. Okay. So just so that I understand, initially10 you're taking MMIC's bid and you're going through this11 scoring guide looking at the strengths and weaknesses and12 making some notation so that later on you can go back and13 attribute a point score?14 A. Correct.15 Q. Then you're going to a next bidder, correct?16 A. Correct.17 Q. Doing the same thing?18 A. Yes.19 Q. Can you give me an idea of how long -- I20 understand the total hours that the eight of you spent21 together with Mr. Szawara and Becky O'Brien was 67 hours.22 Does that sound right?23 A. Felt like much longer.24 Q. Do you know how that was recorded?25 A. I don't. Because I was not -- I wasn't even

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1 aware he was tracking the number of hours that were spent. 2 Q. When you say "he," are you talking about 3 Mr. Szawara? 4 A. Correct. 5 Q. Do you know how much time your group spent 6 talking about MMIC's bid proposal? 7 A. No, I don't. 8 Q. How about any of the other proposals? 9 A. No, I don't.10 Q. Do you know how long this process, the initial of11 just talking about all of these sections, one bidder at a12 time, how long did that whole thing take?13 A. I don't remember how long it took.14 Q. No idea whatsoever?15 A. No.16 Q. So once you completed that for all of the17 bidders, what was the next step the evaluators did with18 respect to reaching a consensus score?19 A. I believe that we had discussed how we would20 approach the actual scoring itself.21 Q. What did you guys decide?22 A. We came up with an approach in terms of -- and it23 was, in part, based upon the -- the points that were the24 possible points.25 So, for example, on the strengths for Method

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1 of Approach, we had a 1 to 5 scale. 2 Q. Okay. That's good. So the least you could get 3 there on the strengths is a 1. The most you can get there 4 is a 5? 5 A. Okay. 6 Q. Is that correct? 7 A. Yes. 8 Q. Okay. 9 A. And on the weaknesses and deficiency, we had a --10 again, a 1 -- wait -- a 1 to 5 scale with a multiple of 5,11 I believe.12 So, for example, if it was -- if it was on a13 scale of 1 to 10 and we thought it was, on a scale from 114 to 10, a 3, multiply that by 5, which would be the 15.15 Q. Okay. But you say this was a 1 to 5 scale with a16 multiple of 5 within that first --17 A. A 1 to --18 Q. -- one's a 50 --19 A. A 1 to 10 scale.20 Q. Okay.21 A. With a multiple of 5.22 Q. Okay.23 A. Then on the Experience and Expertise, I believe24 that was a 1 to 5 scale with a multiple of 5.25 Q. And where was that outlined, this points 1 to 5,

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1 1 to 10, times 5, where does that come in? 2 A. That came in with the consensus of the committee 3 in terms of how to apply a more standardized approach for 4 scoring. 5 Q. Okay. And just for a second here -- going back 6 to the strengths here, all of these sections -- which I 7 didn't count -- I count 14 sections, correct? Under the 8 strengths? 9 A. Areas that -- for Magellan or --10 Q. And we are on, again, Joint Exhibit 33, page 30,11 under the strengths.12 Yes, there's 14 there for Magellan. But13 with respect to those sections that you can look -- I14 mean, how -- how was it determined that the consensus here15 was the maximum of 5 points? Was that just per section?16 Were they weighted equally that you looked at when17 determining . . .18 A. Again, it was based upon -- what we tried to look19 at was the number of total possible points to come up with20 a point scale that would work for identifying strengths21 and weaknesses in scoring related to the strengths -- I'm22 sorry -- the strengths, not the weaknesses.23 Q. The strengths, yes.24 And it indicates at the top there the25 maximum you can have is 50 points.

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1 A. Correct. 2 Q. Correct? 3 Ms. Ault, is it your testimony that with 4 respect to all of the bidders, you first went through this 5 process of strengths, the weaknesses, and deficiencies on 6 all the bidders before you then began attributing points? 7 A. Correct. 8 Q. And then when you began to attribute points, tell 9 me what process you used? Was it again bidder by bidder?10 A. Yes.11 Q. Did you start with MMIC first?12 A. Yes. We would have gone in the order that we13 reviewed them, yes.14 Q. Did someone give you that order? I mean, tell15 you, "This is the order that we're going to do these in"?16 A. I don't recall how it was decided in terms of the17 order.18 Q. What if there was a dispute on the points? For19 example, some people thought it was worth a 2 as a20 strength and others thought it was a 5. How were those21 kind of disputes settled in your group of eight?22 A. Through discussion and dialogue and, you know,23 ultimately we were able to come to consensus on the24 scoring, you know, throughout the tool.25 There were times that there were

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1 disagreements related to things in terms of individuals 2 within that group, but through dialogue and discussion, we 3 all came to a place we were comfortable with in terms of 4 the scoring. 5 Q. I guess when you're talking about points, was 6 that always done orally, out loud? Or was there tallies, 7 turning the paper, you know, we've got three 5s and two 2s 8 and a 3? Was it always -- 9 A. I don't recall -- I don't recall anything other10 than oral conversation.11 Q. Okay. And do you recall whether at any time12 there was someone keeping score?13 A. Someone keeping score of what?14 Q. For example, if you went around the room and you15 said, you know, "I think it should be a 3," and somebody16 else said, "I think it should be a 1," was someone writing17 down the 1s and the 3s and tallying up what the average18 was?19 A. No, I don't recall that approach.20 Q. Is it your testimony that the scoring was21 completed not only with respect to MMIC, the strengths,22 but also the weaknesses and deficiencies, so that MMIC's23 score was completed first?24 A. The pre- -- yes -- preliminary score, yes.25 Q. And at some point in time later, did you come

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1 back and adjust MMIC's score? 2 A. I don't recall adjusting specifically MMIC's 3 score. 4 Q. Do you remember adjusting somebody else's score? 5 A. I don't recall adjusting any particular person's 6 score. 7 Q. Do you know whether there were adjustments made 8 to the scoring on bidders after the scoring was done on 9 all five --10 A. I believe that --11 Q. -- the preliminary scoring?12 A. I believe there were adjustments that were made.13 Q. And was that in comparing one bidder against the14 other in making that adjustment?15 A. It was in reviewing the score given for a16 particular area of weakness that would -- that was the17 same, for example, on each of the bids and making sure18 that there was consistency of the actual score given.19 Q. Do you remember that occurring at all with the20 strengths?21 A. It would have been done across the board in terms22 of scoring.23 Q. Okay. So there were adjustments made in the24 strengths area as well as the weaknesses and deficiencies?25 A. Correct.

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1 Q. And of course, those adjustments would change the 2 preliminary overall score for that bidder. Would you 3 agree with me? 4 A. I'm not sure I know what you're asking. 5 Q. Well, when you're adjusting scores, either in the 6 strengths or the weaknesses and deficiencies, that's 7 causing an overall change in the bottom score, would you 8 agree with me? 9 A. We did not add up or tally the numbers, so I10 don't know how it would impact a particular bottom line.11 So, for example, there could be an12 adjustment of the strengths and an adjustment of the13 weaknesses and they could even themselves out. And so the14 bottom line would be the same. I can't answer that15 question because that's not how we did it. We did not --16 we did not tally an end score for each of the offerors.17 Q. Who did the tallying?18 A. The tallying -- I actually don't know if that19 happened at the very end. And I don't recall who did the20 tallying, if it was -- the procurement people I would21 believed would have done that, but I don't recall22 specifically who did the end tally.23 Q. Were you present when that tallying took place?24 A. I believe I was present for the end tally, yes.25 Q. And you had to actually sign, didn't you --

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1 A. Yes. 2 Q. -- the point score? 3 A. Yes. 4 Q. So you were there, but you don't remember who did 5 it? 6 A. The end tally was -- there was a tally that 7 was -- Yes, I was there. 8 So I don't know who did the actual tallying 9 itself, who did the addition of all of the -- I don't know10 that.11 Q. What I would like to do now is go through -- and12 by the way, you know, as you sit here today, that MMIC won13 the bid, correct?14 A. Yes.15 Q. And do you know that -- how much point spread16 there was between MMIC and Magellan?17 A. I don't know the exact spread.18 Q. Would you -- Do you remember that it was close,19 only 95 points? Does that sound familiar?20 A. That sounds about right.21 Q. I would like to go through -- I have some22 questions concerning the scoring of the group. And if you23 would like to, feel free to use exhibit -- Joint24 Exhibit 33, with respect to this scoring tool to help25 refresh your memory, or if you need any additional

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1 information, please feel free to just tell me what it is 2 you need to help you. Okay? 3 A. Okay. 4 Q. Now, I understand that Magellan lost 10 points 5 for staffing deficiencies and, in particular, with respect 6 to two staff members. One was the medical management 7 administrator and EPSDT coordinator. Those were the two 8 staff members. And it was indicated that they apparently 9 lacked physical health experience. Did you find that?10 A. I see what you're referring to. That's not how I11 would interpret that evaluation finding.12 Q. Okay. Tell me your interpretation.13 A. On the Maternal Health/Early Periodic Screening14 and Diagnostic Treatment Service coordinator lacked15 sufficient EPSDT maternal health experience. It doesn't16 say --17 Q. If you go on -- Okay, go ahead.18 A. Your comment was lacks -- I think you said acute19 care or physical healthcare experience. That wasn't the20 finding.21 And the medical management administrator22 lacked sufficient physical healthcare experience and does23 not meet the criteria listed in the scope of work.24 Q. Okay. If you could tell me how the group arrived25 at the 10-point deduction?

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1 A. I believe, again, this was on a scale that was 2 done from 1 to 5 with a multiple of -- I'm trying to 3 remember how that worked. I'm sorry, I'm just -- I'm 4 forgetting right now. 5 1 to 5 with multiple of 5. And so it would 6 have been identified as -- on a scale of 1 to 5 a 2, 7 multiplied by the 5 is the 10 points. 8 Q. All right. And just so that I understand, there 9 were two specific staff members that you were looking at,10 their resumes. Is that correct?11 A. Correct.12 Q. And so was that 1 point off for each staff13 member?14 A. I don't know that it equated to that. But one of15 the -- one of the very big concerns, that I know was part16 of the discussion of the committee as a whole, was the17 medical management administrator is a key position in this18 integrated healthcare contract, very important component,19 and the lack of the physical healthcare experience and not20 meeting the minimum requirements was of great concern21 given the nature of the contract.22 Q. So was there more -- more of the -- the two23 points given for her lack of experience versus the24 maternal health EPSDT coordinator?25 A. I can't tell you that. I don't -- I don't recall

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1 that specific conversation. All I can tell you is as a 2 consensus group, we agreed that the value in terms of 3 points to be deducted was 10. 4 Q. And of course, that's the times -- I take it it 5 was 2 points times 5 to get to the 10 points. Is that 6 right? 7 A. Correct. 8 Q. Was there a definition of "acute" in the 9 solicitation?10 A. I don't know. I can't tell you that.11 Q. Don't remember?12 A. I don't recall if that is a specific definition,13 no.14 Q. Why is it that with respect to the resume of Judy15 Venezia, the maternal health EPSDT coordinator, why were16 any part of the points or a point taken off for her?17 A. Can you pull up her resume?18 Q. We'll get that for you.19 You know, while she's pulling that up, let20 me quickly go -- because as you explain those points to21 us, I want to go to page 53 of Joint Exhibit 33.22 All right. This is with respect to the23 scoring on Cenpatico, correct? We're on -- now we're on24 page 52. Do you see that on your screen?25 A. Yes.

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1 Q. And you've told us the first part, the strengths, 2 are a point scale of 1 to 5. And you told us the 3 weaknesses and deficiencies are 1 through 10 times 5? 4 MR. RAY: Your Honor, I'm going to object. 5 Because Cenpatico's score is not part of their protest. 6 This scoring tool for Cenpatico is simply not part of 7 their protest. 8 MS. MANJENCICH: Judge, we're trying to 9 figure out the scoring tool here and how the points were10 assessed and the arbitrariness of these points. And11 looking at Cenpatico's points, which this witness tells12 us, they're taking -- when they get done with the scoring,13 they're looking across the board to make sure they're14 fair. And when we're learning what this point scale is,15 when we look at Cenpatico's scoring, there's 150 points16 taken away from Cenpatico, which 10 times 5 totals 50 and17 not 150. And so we're just trying to figure out what the18 point scale here is that's supposedly used across the line19 with respect to all five bidders.20 JUDGE MIHALSKY: The objection is sustained.21 Limit yourself to the protest.22 BY MS. MANJENCICH:23 Q. We're getting that resume for you, Ms. Ault. And24 that's going to be Exhibit 2 of Dr. Temm's report, which25 has not been admitted. However, it does contain the

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1 resume on page 12 -- oh, tab 12. 2 JUDGE MIHALSKY: And I note that I have tabs 3 now, and I appreciate that. I do not have a tab 12, 4 however. 5 MS. MANJENCICH: Oh. 6 JUDGE MIHALSKY: I mean, is that -- 7 MS. PREMEAU: Your Honor, tab 12 is the very 8 last tab. 9 JUDGE MIHALSKY: I see.10 MS. PREMEAU: And it's --11 JUDGE MIHALSKY: I see it's right there,12 Judy Venezia. That would be tab 12.13 MS. MANJENCICH: The Bate number is 307.14 MR. RAY: Counsel, is this pulled directly15 from the offer -- Magellan offer?16 MS. PREMEAU: Yes, it is.17 JUDGE MIHALSKY: I'm sorry. Is there a18 question or . . .19 BY MS. MANJENCICH:20 Q. Yes. You wanted to see the resume to tell me how21 there was a deduction for Ms. Venezia?22 JUDGE MIHALSKY: I don't know if she has the23 resume. Does she have the same thing?24 MS. MANJENCICH: It's up on the screen.25 JUDGE MIHALSKY: It's up here. Very good.

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1 THE WITNESS: My recollection about the 2 committee discussion related to this is that the primary 3 experience of this nurse had been toward the end of life 4 type of issues. And she had very, very limited experience 5 in working with this population and particularly around 6 the specific services to be provided there. 7 BY MS. MANJENCICH: 8 Q. And wasn't the criteria for the scope of work 9 that the person would be a licensed nurse, physician,10 physician's assistant, or somebody with a master's degree?11 Wasn't that what the request was as far as --12 A. If you -- if you go back to the instructions that13 precede all of the sections -- can you pull up that14 language? Because it provides the context for that, which15 basically tells us as evaluators that it's beyond just the16 minimum requirements in the solicitation itself, but it17 has to be taken in context with the mission of this18 contract as a whole and -- so -- but if you pull up the19 language, I can specifically read it to you so you're20 familiar with that.21 Q. In any event Ms. Ault, you can't tell us how much22 was deducted for Ms. Ault, correct? I mean for23 Ms. Venezia?24 A. I can only tell you what was deducted for both of25 the weak resumes for those particular identified staff.

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1 Q. Now, Magellan lost 10 points for organizational 2 staff is underrepresented in acute care experience. Let's 3 get your scoring guide on Magellan back, which is 4 Joint 33, page -- I think it was 30. 5 What definition of "acute care" did you use? 6 A. Where are you? I'm not following where you are 7 right now. 8 MR. RAY: There's no 10-point on the screen. 9 MS. MANJENCICH: 15-point deficiency.10 MR. RAY: Are we referring to 7.5?11 MS. MANJENCICH: Organizational staff.12 Acute care staff. There it is.13 MR. RAY: Okay.14 MS. MANJENCICH: It is on page15 Bate 32. Do you see that?16 THE WITNESS: Yes.17 BY MS. MANJENCICH:18 Q. How did you arrive at that Bate 32?19 A. My recollection of the committee's conversation20 around that is reviewing the -- the provided resumes or21 the job descriptions of the organizational staff, that22 there was an underrepresentation in physical healthcare or23 acute care experience with respect to the individuals who24 were comprising that.25 Q. What was -- was there an average that the group

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1 was looking at? 2 A. No. What we were looking for is specific 3 experience related to physical healthcare or integrated 4 care or something along those lines that would be more 5 recent and relevant to the type of contract that we 6 were -- we were procuring. 7 Q. Okay. So that's the second time you've used the 8 term "recent." 9 You're talking about a job history of that10 individual that would have been in the either present or11 near present. Is that what you're saying when you say12 "recent"?13 A. Well, if you would like to pull up some of the14 resumes, I guess we could go through them.15 But many of the resumes, if it had some16 amount of physical healthcare, it was very limited, that17 the person's primary experience was in behavioral health.18 And so there was a very strong experience on the19 behavioral health side, but not so much on the physical20 health side as a whole within those organizational staff.21 That's why the committee reviewed -- in22 reviewing those, came up with the point rating it did in23 terms of the organizational staffing underrepresented in24 acute or physical healthcare experience.25 Q. Okay. Acute care equals physical care?

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1 A. Correct. 2 Q. Would you agree that 162 years of acute care 3 cumulative of the resumes provided would be significant 4 experience? 5 MR. RAY: Objection, Judge. There's no -- 6 she's asked to see the resumes. The finding isn't -- or 7 the evaluation isn't number of years. It's related 8 experience. And just asking that question is an unfair 9 question.10 JUDGE MIHALSKY: I saw that number in11 Magellan's bid. And right now I don't know the foundation12 for the number. And I understand that I heard Dr. Temm13 testify to even more years of experience. And I don't14 think that there's any foundation for the question to be15 asked to this witness if you don't show her the basis of16 the claimed experience.17 MS. MANJENCICH: Thanks, Judge. We won't --18 we won't go back through these resumes and count up the19 years of experience for the resumes that were submitted.20 We'll move on, Judge.21 BY MS. MANJENCICH:22 Q. Ms. Ault, Magellan lost 25 points for23 inconsistent experience and expertise.24 A. Again, I'm not sure where you are.25 Q. Page -- Bates stamp number 32 of Exhibit -- Joint

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1 Exhibit Number 33. 2 Do you see that 25 points? 3 A. Yes, I do. 4 Q. How did you reach that score? 5 A. Again, it was a consensus scoring approach, and 6 this is what the group agreed to. 7 Q. Whose star rating did you consider when you 8 looked at Magellan's proposal? 9 A. I'm sorry. I'm not -- I'm not following where10 you are with this.11 Q. Well, we're right there at the top, 25 points.12 And there is an indicator that -- oh, we're not in the13 right spot. Hold on just a moment. We are in the14 inconsistent experience and expertise.15 Could you tell me why did Magellan -- why16 were they deducted 25 points with respect to inconsistent17 reporting of experience and expertise related to the18 parent and/or affiliated organization?19 MR. RAY: I will just object, asked and20 answered.21 MS. MANJENCICH: Well, Judge, other than it22 being a consensus -- I mean --23 JUDGE MIHALSKY: Overruled.24 THE WITNESS: I'm sorry. Am I supposed to25 answer that question?

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1 JUDGE MIHALSKY: You are. 2 THE WITNESS: Okay. So if you look at the 3 instructions, the lead-in to the instructions of this 4 particular thing -- if you want to, you can bring that up 5 for me and I could read it to you. 6 BY MS. MANJENCICH: 7 Q. Where is it? Where would you like us to pull it 8 up -- 9 A. It would be in the -- just the instructions and10 just prior to the Experience and Expertise section.11 MS. MANJENCICH: What we're looking at is12 Magellan 296, Bates stamp number 1, attachment 5,13 Experience and Expertise.14 BY MS. MANJENCICH:15 Q. Is that what you were referring to that you16 wanted to see?17 A. Yes.18 Q. You can use that mouse to scroll there.19 A. So in this section it talks about the offeror20 should respond to or provide the following regarding the21 offeror's company to include the entity which the offeror22 intends to have as a management services subcontractor.23 The offeror response should be for the parent company and24 if applicable the company created for the solicitation.25 And what we noted as a group was there was

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1 selective reporting of various affiliates or parents 2 throughout this experience and expertise of -- for 3 Magellan. And that was of concern to the committee. 4 Q. And who is it you looked at? 5 A. Pardon? 6 Q. What companies did you look at? 7 A. Throughout -- if we go back to the actual 8 scoring, there were specific -- the scoring tools shared 9 specific examples.10 (An off-the-record discussion ensued.)11 (A recess ensued.)12 JUDGE MIHALSKY: We're back on the record.13 MS. MANJENCICH: Thanks, Judge.14 BY MS. MANJENCICH:15 Q. Going back to Joint Exhibit 33, that we have up16 on the screen. At the right, at the very top, we're17 talking about the 25 points that were deducted for18 Magellan. And I believe your testimony is that in19 determining that score, you looked at not only the20 offeror, correct? But also parent companies, correct?21 A. We looked at the consistency of reporting. But,22 yes, we also looked at the offeror and parent companies.23 Q. Can you tell me, do star ratings apply only to24 Medicare health plans?25 A. I believe so, but I -- I don't know for sure.

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1 Q. Do you know if Phoenix Health Plan is a Medicare 2 health plan? 3 A. I do not believe they're a Medicare health plan. 4 Q. And if it's not, would you agree that they would 5 not have a star rating? 6 A. Correct. 7 Q. Now, according to this section, the group took a 8 look at a Abrazo health plan, was referenced in your 9 scoring, correct?10 A. Correct.11 Q. Was it the evaluators' understanding that Abrazo12 was a parent of Magellan Complete Care?13 A. No.14 Q. Then why were they also included when you only15 looked at -- when you were looking at the offeror and16 parent companies?17 A. Again, it was the inconsistency of reporting.18 What it appeared from -- from the evaluators, our19 discussion was around when it was advantageous to report20 experience, Magellan would use Abrazo, for example. But21 in -- you know, in other areas, such as the star rating,22 it was not reported or not included. It was selective23 reporting and that was odd to the evaluators.24 Q. So with respect to this, you expanded the scope25 of not only looking at the offeror and the parents, but

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1 beyond that to include Abrazo with respect to these point 2 deductions. Is that right? 3 A. What I can say is that the committee looked at 4 the consistency of reporting that Magellan reported in 5 terms of their parents or affiliates. 6 Q. And you and the group understood that Abrazo was 7 not a parent company of Magellan Complete Care, correct? 8 A. That's correct. 9 Q. Magellan also lost 10 points in the evaluation10 under the "Description of coordination for non SMI11 population that does not include physical healthcare12 coordination"?13 A. Can you locate that on the tool?14 Q. Please feel free to move that.15 A. Okay. I didn't know if I was allowed to or not.16 Q. Yes, please do.17 A. So I'm sorry. Repeat again, the 10 points for --18 Q. It was "Description of coordination for non SMI19 population does not include physical healthcare" --20 whoops, I think we bypassed it there -- and it's 1021 points -- apparently right by your mouse, there it is.22 A. Okay.23 Q. And we are on Bate page -- I'm going to try to24 find that -- 31. Do you see that section?25 A. Yes.

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1 Q. Could you tell me how that score was reached? 2 A. I'd have to look on that particular page. Do you 3 have that in the -- in the offer? Can you pull up the 4 pages from the offer? 5 Q. What section are we referring to? 6 A. It's 8.11. Pages 28 and 29 are what is listed in 7 the evaluation findings. 8 Q. Is it for Experience or Method of Approach? 9 A. I believe it's Method of Approach.10 MS. FLORES: Patty, I think it's Magellan11 302, page 12.12 MS. MANJENCICH: 302, page 12.13 THE WITNESS: Are these -- are these the14 same page numbers or -- do you know that for sure or . . .15 BY MS. MANJENCICH:16 Q. Are you using the page number indicated on17 your --18 A. Yes.19 Q. -- scoring?20 A. Yes.21 Q. This is Magellan's bid proposal. So if -- we22 don't know how your page numbers were determined.23 A. Okay. And can I also go back to look at the24 requirements in the solicitation itself for section 8.11?25 MS. PREMEAU: To clarify, would that be in

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1 the scope of work? 2 THE WITNESS: That would be in the scope of 3 work, yes. 4 MS. PREMEAU: Okay. Because, again, we may 5 want to give you some physical documents because I think 6 we're going to have way too many screens up here 7 otherwise. 8 THE WITNESS: I apologize, but -- 9 MS. PREMEAU: No.10 THE WITNESS: -- there's a lot of documents11 to go through.12 Thank you.13 BY MS. MANJENCICH:14 Q. Before you answer, Ms. Ault, if you could15 identify the exhibit that you're looking at and the page16 number?17 A. Right now I'm reviewing.18 Okay. Going by the stamp up at the top?19 Q. Yes.20 A. JNT-0004.21 Q. So Joint Exhibit 4. And page number?22 A. Page number, is that at the top as well?23 Q. Bates stamp, yes.24 A. It's 49. So I'm reviewing under section 8.11,25 which then refers to sections 5.1 and 5.2 as well.

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1 So I believe the discussion with the 2 committee around this particular item dealt with the fact 3 that the non-SMI population, meaning general mental health 4 and children, did -- did not meet the requirements for -- 5 for the coordination of care related to physical. 6 Q. What were the requirements? 7 A. So specifically, if you look at item 5.1.7, for 8 example, this communication among the behavioral health 9 and physical health service providers regarding the10 progress, et cetera, different information that's being11 shared with the -- with the physical healthcare service12 provider.13 Q. Was there anything else you wanted to add?14 A. No.15 Q. Would you agree that Magellan provided details16 about community reinvestment of $3 million to develop17 tools for such coordination, including health risk18 assessments, develop and use for kids, the non-titled19 seriously mentally ill, and GM-SA population co-location20 programs for kids and the GMH-SA population and its21 development of the PCP consultation line, just to name a22 few. Can you tell me why that wasn't sufficient?23 A. Where are you? Show me.24 MR. RAY: I was going to ask that question.25 You're reading from something. Could you fill us in?

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1 (An off-the-record discussion ensued.) 2 BY MS. MANJENCICH: 3 Q. Ms. Ault, what we've pulled up for you is Joint 4 Exhibit Number 40, which is Magellan's Bid Protest. Have 5 you seen it? 6 A. Not in its entirety, no. 7 Q. And you've certainly heard people testify about 8 it over the last couple of days, correct? 9 A. I've heard bits and pieces. I've been in and out10 listening.11 Q. We're at the bottom of Bates stamp number 23, top12 of page Bates stamp number 24, the 10 points Magellan lost13 and the details indicating about the information that was14 provided in the Method of Approach.15 If the information that is detailed there in16 Magellan's protest was located in the four corners of17 Magellan's solicitation, can you tell me, would that have18 been sufficient?19 A. Magellan was required to respond to the specific20 sections with a comprehensive response that would give the21 evaluators a sense of whether or not the requirements22 under each section were being met.23 So it would be required to be -- look within24 the four corners of the document, but that didn't -- that25 doesn't translate to having the evaluators be responsible

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1 for digging throughout the entire evaluation to determine 2 whether a section was met or not. 3 Q. Okay. But if this -- this information was in the 4 correct section in Magellan's proposal, could you tell me 5 whether or not that information met your standard? 6 MR. GORDON: Object. Lack of foundation. 7 There's no evidence that it was. 8 JUDGE MIHALSKY: Sustained. 9 MS. MANJENCICH: The question was if it was.10 MR. GORDON: No. That wasn't the question.11 MS. MANJENCICH: The Court --12 MR. GORDON: She didn't establish the13 foundation.14 MS. MANJENCICH: A new question.15 BY MS. MANJENCICH:16 Q. Assuming, Ms. Ault, that this information was17 provided in the four corners of Magellan's proposal, could18 you tell me why this did not meet your standard?19 MR. GORDON: Same objection. Lack of20 foundation. Can't ask a hypothetical. Can't fill it in21 later with the underlying facts.22 MR. RAY: I would join in that. And also,23 what I believe the witness said was that you have to24 respond in the section you're -- you've been asked to.25 You can't put it elsewhere and lay it on the evaluators to

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1 look for it. And that . . . 2 MS. MANJENCICH: Your Honor, the question 3 was if it was in the correct section and the information 4 was contained in the bid proposal, why that didn't meet 5 the standard requirement of the solicitation. 6 MR. RAY: Same objection. 7 JUDGE MIHALSKY: Sustained. 8 BY MS. MANJENCICH: 9 Q. Ms. Ault, with respect to this information, what10 part of the proposal should it have been in?11 A. Without reviewing it in context, I -- I mean,12 I -- I wouldn't be able to tell you that. I don't know.13 Q. And you can't tell from the scoring tool?14 A. I don't understand what you're asking me.15 Q. Doesn't the scoring tool identify sections where16 this information should have been contained?17 A. You're asking me to extrapolate the infor- -- I18 don't even -- first of all, I don't know what information19 you're talking about.20 And beyond that, for me to apply it to a21 section, that's not my responsibility as the evaluator.22 That would be the offeror's responsibility.23 So for me to interpret that, I would almost24 have to be in the offeror's position to know what I25 intended to have been viewed by an evaluator. And I

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1 can't -- I can't do that. 2 Q. Ms. Ault, as I look at the scoring tool, and 3 specifically Bates stamp 31, do you see the section that 4 says "Description of coordination for non SMI populations 5 does not include physical healthcare coordination"? Do 6 you see that? 7 A. Yes. 8 Q. All right. And then there's a section that is 9 cited next to that finding.10 A. Yes, I see that.11 Q. And does that section -- What does that section12 correlate to?13 A. The section correlates to the scope of work14 section, 8.11, Care Coordination, which references15 compliance with all requirements in section 5.1 and 5.2,16 which then requires coordination of care with physical17 healthcare providers for that -- those populations.18 Q. And this information should have been supplied by19 Magellan in what section?20 A. 8.11.21 Q. And it's your testimony that it was not located22 there. If that information was in their bid proposal, it23 was not in the correct section. Is that correct?24 A. I don't recall any information related to this25 being in that -- in that section, no.

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1 Q. Now, Magellan also lost 10 points for -- and 2 we've talked about this a little bit -- the RBHA-employed 3 staff providing direct services to a member. Did we find 4 that on the scoring tool? 5 Do you see that there on Joint Exhibit 6 Number 33, page 31? 7 A. Yes. 8 Q. And this was for -- and, of course, we're looking 9 at Magellan's scoring tool -- this was because 10 points10 were deducted for a violation of the statute 36.3410.C,11 correct?12 A. It was the scope of work -- I think you've13 forgotten an important piece, which is scope of work14 section 8.13.15 Q. Okay, which is cited there. But the bottom --16 and we talked about that. It's that a manager of the RBHA17 cannot also provide services, correct? Direct services?18 A. I'm sorry. Repeat your question. I'm sorry.19 Q. Yes. That the manager, the RBHA, cannot provide20 direct services, correct?21 A. That the RBHA cannot provide direct services or22 RBHA staff.23 Q. Correct.24 And I believe your committee's finding was25 that Magellan violated -- was in violation in that one

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1 staff member, correct? 2 A. That one type of staff member, correct. 3 Q. What do you mean by "type of staff member"? 4 A. Well, there's more than one staff, I would 5 presume, doing that work, so it would be more than one 6 staff member. 7 Q. Okay. So are -- you're guessing or you're saying 8 there's more than one person that fills that position that 9 would have violated?10 A. I -- based upon Magellan's proposal, I would be11 assured, unless you don't hire the people you were12 claiming you were going to hire, that there would be more13 than one care manager for your entire population, yes.14 Q. And would that be a paid employee?15 A. I don't even know -- I don't know how to answer16 that question.17 MR. RAY: I'm going to object. I don't know18 how you would know that.19 BY MS. MANJENCICH:20 Q. Does it matter if that person was paid?21 A. I don't still understand your question. Paid by22 whom? What -- I don't understand.23 Q. Well, by the RBHA? By Magellan?24 A. Would it matter whether they're paid by them?25 Q. Yes.

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1 Oh, the service paid. 2 A. Oh. 3 Q. Sorry. 4 MR. RAY: Counsel, could you restate -- 5 BY MS. MANJENCICH: 6 Q. The service provider -- 7 JUDGE MIHALSKY: Could you restate the -- 8 please restate the question. 9 BY MS. MANJENCICH:10 Q. Does it matter if -- Well, does it have to be an11 encounterable contact?12 A. I believe that what you're talking about would be13 an encounterable contact, because you're providing direct14 service to a member. That's what was of concern.15 What wasn't clear in the solicitation was16 whether or not payment was going to occur, so we had to17 assume that that was a possibility since it is an18 encounterable service. And it was explicit.19 And if you look under 8.13 of the Care20 Management Program-Goals, it says on the bottom of that21 paragraph, "While Care Managers can provide consultation22 to a member's Treatment Team, they should not perform the23 day-to-day duties of case management or service delivery."24 Q. And tell me how those -- how was it determined25 that 10 points were assessed against Magellan?

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1 A. Again, it was a consensus of the committee. 2 Q. It's all -- Under the scale for scoring 3 deficiencies, was it possible for a bidder to lose more 4 than 50 points? 5 A. Under -- I'm sorry, repeat the question. 6 Q. A while back you told us about how the numbers 7 were calculated, times 5 equals. Would it be possible 8 that a bidder could get more than a 50-point deduction in 9 any area of the weaknesses and deficiencies?10 MR. RAY: Objection. That would presume11 they're one and the same.12 JUDGE MIHALSKY: Sustained.13 BY MS. MANJENCICH:14 Q. Could you have more than a 50-point deduction15 against you in the weaknesses and deficiencies?16 A. Yes.17 MR. RAY: Objection.18 JUDGE MIHALSKY: She's answered the19 question.20 BY MS. MANJENCICH:21 Q. How?22 A. For a deficiency?23 Q. Yes. Or weakness?24 A. No, for a deficiency would be the circumstance in25 which you could be deducted more than 50 points. That

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1 would be the only circumstance in which you would be 2 deducted more than 50 points. 3 Q. All right. So then the scale that you gave us 4 before of a maximum 10 points times 5 equals 50, there 5 would be times that would not apply? 6 A. Only for a deficiency. 7 Q. What was the maximum points that one could get 8 for a deficiency? 9 A. We, as a group, had only had a collective10 discussion about -- I believe there was only one11 deficiency in the offers that were presented, and I12 believe that that was a 150-point deduction.13 Q. Was there some sort of mathematical formula that14 went to that?15 A. I don't recall our conversation about the formula16 for that.17 Q. So is the maximum deduction that you can get for18 a weakness 50?19 A. Correct.20 Q. And that was that 10 times 5 equals 50 formula,21 correct?22 Up to 10 points times 5 equals a maximum of23 50?24 A. Correct.25 Q. And the maximum you can have on strengths is 5,

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1 correct? 2 A. Correct. 3 Q. And so now the maximum on deficiencies is 150, 4 correct? Or is it higher? 5 A. I was only posed with -- we, as a committee, had 6 only encountered a single deficiency in the offers that 7 were presented, so I can only speak as to that. I 8 don't -- I couldn't speak beyond that because I wasn't 9 presented with any other information. The evaluators, as10 a committee, weren't presented with a situation to11 consider.12 Q. All right. So you don't -- would it be safe to13 say you don't know what the maximum deficiency could have14 been considered by the committee?15 A. Correct.16 MS. MANJENCICH: Okay. Nothing further.1718 CROSS-EXAMINATION19 BY MR. RAY:20 Q. Margery, I'm going to try to be as quick as we21 can. Okay?22 A. Okay.23 MR. RAY: Would Magellan stipulate her24 resumé into evidence?25 MS. PREMEAU: Yes.

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1 MR. RAY: All right. Thank you. I'll give 2 you a number. 3 MS. PREMEAU: It's going to be ADHS -- 4 MS. FLORES: 11. 5 MS. PREMEAU: -- 11. 6 MR. RAY: Thank you. 7 JUDGE MIHALSKY: Pursuant to the 8 stipulation, ADHS Exhibit 11 is admitted. 9 MR. RAY: Thank you.10 BY MR. RAY:11 Q. Margery, we pulled up Joint Exhibit 29, and it's12 Bate pages 30 -- and I'm going to let -- Go ahead.13 That's fine. Scroll down and we'll see that -- here you14 go.15 Do you recognize this document?16 A. Yes.17 Q. Can you tell us what this document is?18 A. This was a statement form that was required to be19 completed as an evaluation committee member.20 Q. And it contains some instructions to you as an21 evaluator. Would you agree?22 A. Yes.23 Q. Would you read the second sentence in that24 document?25 A. Second sentence?

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1 Q. Yes, first paragraph, second sentence. 2 A. "Your selection was based on your technical 3 knowledge and expertise in this area and your ability to 4 develop an objective/subjective analysis of each 5 proposal." 6 Q. And I think there's been a lot of questions about 7 what your technical knowledge or expertise is as an 8 evaluator. Do you recall those questions from counsel? 9 A. Yes.10 Q. Your -- Let's move to the second paragraph.11 Is that an admonition that the evaluators12 should ensure that each offer is given fair and equal13 consideration?14 A. Yes.15 Q. Would you look at the third paragraph?16 A. Okay.17 Q. Were you also aware, when you signed this, that18 you're required to report any conflicts of interest and19 that you would be subject to a code of ethics?20 A. Yes.21 Q. The fourth paragraph requires evaluators to22 maintain integrity and confidentiality in the process.23 Were you aware of that?24 A. Yes.25 Q. And do you see your signature at the bottom of

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1 that document? 2 A. Yes. 3 Q. And do you see the date? 4 A. Yes, I do. 5 Q. Would you read that into the record? 6 A. January 3rd of 2013. 7 Q. By signing that document, did you affirm that you 8 would obey the duties and responsibilities as set forth in 9 that document?10 A. Yes, I did.11 Q. Do you believe that you have fairly and equally12 gave -- given consideration to each and every offer?13 A. Yes, I do.14 Q. Do you believe, as a member of the committee,15 that the committee, in your opinion, gave fair and equal16 consideration to every offer?17 MS. MANJENCICH: Your Honor, I object to18 that. She indicated she didn't have any knowledge of how19 the others looked at the bid proposals or what they did.20 JUDGE MIHALSKY: He's asking about her.21 MS. MANJENCICH: Her opinion as to the22 others, I think was the question.23 MR. RAY: I did ask if she has an opinion as24 to whether, as a participating evaluation committee25 member, that she believes the committee considered every

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1 offer fair and equally as part of its requirement. 2 MS. MANJENCICH: I think he's asking her to 3 vouch for the other members, and I don't think that's 4 appropriate here. I mean, she can speak about what she 5 did and what she knows. But how she can guess what they 6 did in times when they weren't with her or -- 7 JUDGE MIHALSKY: Can you establish a little 8 more foundation for this question? 9 MR. RAY: Yes. I'm happy to, Judge.10 BY MR. RAY:11 Q. You were present during every committee meeting12 where these offers were considered?13 A. Yes, I was.14 Q. During that process, you participated in a15 collective discussion and the eventual -- the eventual16 determination that is reflected in the consensus scoring.17 A. That's correct.18 Q. Okay. As a participant of that committee, did19 you hear any member of that committee attempt to steer the20 conversation or the discussion and evaluation against any21 particular offeror, whether it was a positive or a22 negative?23 A. Not in terms of any particular vendor by24 category. Meaning that it wasn't -- nothing was targeted25 by a particular vendor. It was all based upon the content

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1 of the proposal. 2 Does that make sense? 3 So, for example, there may have been a 4 person who felt strongly and in that dialogue we discussed 5 the proposal itself, but there was no . . . 6 Q. Did you hear or see any -- any bias in the 7 scoring -- consensus scoring process that this committee 8 performed? 9 A. No.10 Q. Did you see or hear any -- of any favoritism11 toward any one offeror or against any one offeror in this12 consensus process?13 A. No, I did not.14 Q. Did anyone at the Department of Health, or any15 outside entity or person, urge you to evaluate an offer16 more favorable or less favorable than anybody else?17 A. No.18 Q. Did you yourself use your best judgment during19 this consensus evaluation process to be fair to all20 offerors?21 A. Yes.22 Q. Were you arbitrary in exercising your judgment23 and discretion in this process with any offeror?24 A. No.25 Q. Did you witness any arbitrary action by any of

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1 the committee members during the evaluation process? 2 A. No. 3 Q. Do you believe that you took enough time to 4 fairly consider the merits of all offers received? You 5 yourself? 6 A. Me myself? 7 Q. Yes. 8 A. Independently reviewing? 9 Q. Yes.10 A. Yes, I do.11 Q. Did you undertake your responsibilities as an12 evaluator lightly?13 A. No, I did not.14 Q. Were you aware that there were financial15 penalties that could be assessed against an evaluator if16 there was a breach of the integrity of that process?17 A. I was aware that there's personal liability18 related to that, yes.19 Q. And do you believe that you received enough20 guidance and instruction so that you could fairly and21 equally consider all offers when it comes to measuring22 strengths, weaknesses, deficiencies, or making no point --23 no point -- sorry.24 MR. GORDON: Adjustment?25 MR. RAY: Adjustment. Thank you.

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1 MR. GORDON: You're welcome. 2 THE WITNESS: I felt that the instruction 3 that was provided to the committee was adequate. 4 BY MR. RAY: 5 Q. It allowed you to do your job as an evaluator? 6 A. Yes. 7 Q. Do you recall when you complete the process -- 8 the evaluation process? 9 A. I'm sorry?10 Q. Do you recall how long ago it was?11 A. I couldn't give you the precise date, no.12 Q. You testified briefly about a meeting that13 occurred at DHS after the pre-offerors' conference?14 A. Yes.15 Q. And you said you couldn't remember specific16 individuals there. Do you know whether it was an ADHS17 meeting or a combined meeting with AHCCCS?18 A. I'm sorry. I can't recall whether it was19 combined or not.20 Q. Were you present when Magellan's witness, Mary21 Temm, testified as to how she did her comparison, how she22 did her scoring, her rescoring of the Magellan proposal?23 A. I was kind of in and out for that testimony.24 Q. Okay. What Ms. Temm testified to was that when25 she did the rescoring, she compared the MMIC offer at the

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1 same time she reviewed the Magellan offer. 2 A. Okay. 3 Q. Okay? 4 Did you or anyone on the committee do that 5 same process during the evaluation? 6 A. No. 7 Q. When you talked about reviewing for consistency, 8 were you reviewing specific offers or were you reviewing 9 across the scoring tools?10 A. Reviewing across the scoring tools of those11 strengths and weaknesses that we, as a committee, had12 already identified.13 Q. Okay. And you would have done that with those14 that were the same?15 A. Correct.16 Q. That you identified a particular weakness and it17 occurred on someone else's scoring, you -- you reviewed to18 ensure it was a consistent score?19 A. Correct.20 Q. Do you recall if there were any technical experts21 that assisted the evaluation committee in its work?22 A. Yes.23 Q. And did those experts come and discuss certain24 aspects of an offer with the committee?25 A. Yes.

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1 Q. And what type of technical experts would you have 2 heard from? 3 A. We heard from a Medicare expert, and we had also 4 an expert come in for the -- I believe it's the 5 demographic data. 6 MR. RAY: I'm almost finished. Thank you. 7 If you'll -- My crack assistant here is 8 smarter than I am, so I have to allow her the opportunity 9 to help me out.10 I'm looking for Magellan's response in11 section 1.8. Is that something you guys know off the top12 of your head?13 MS. DESAI: MAG 296.14 MR. RAY: Thank you.15 I apologize. This is my last . . .16 BY MR. RAY:17 Q. Would you look at question 1.8 -- or the response18 there on 1.8? And this is Magellan's response at -- it's19 Exhibit 296 -- Magellan 296 at 151.20 Would you look at the question reflected in21 1.8? It's a question regarding past Medicare experience,22 correct?23 A. Correct.24 Q. And would you read the question?25 A. It says, "Describe your company experience with

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1 managing care and administrating Medicare benefits for 2 dual eligible members with behavioral health conditions." 3 Q. Okay. And if you look at that response -- if you 4 look at Magellan's response in that first paragraph, do 5 you see a reference to Abrazo Advantage Plus? 6 A. Yes. 7 Q. And what comes immediately after that? What -- 8 what is the reference -- 9 A. Medicare Advantage D-SNP plan.10 Q. I'm sorry. I was talking over you, I apologize.11 Finish your answer.12 A. Medicare Advantage D-SNP plan.13 Q. Okay. So in this section that asks for company14 experience, they are providing information about Abrazo15 Advantage Plus, correct?16 A. That's correct.17 Q. Do you recall the question about the advantage18 star rating, the Medicare star rating?19 A. Yes.20 Q. And we'll try to get there.21 But do you recall that -- Fantastic. This22 goes to the 25-point deduction for inconsistent reporting23 of experience and expertise related to parent and/or24 affiliated organizations.25 MR. RAY: For the record, we're looking back

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1 at Joint 33 at page 32. 2 BY MR. RAY: 3 Q. Does this help recall a reason why the committee 4 found a 25-point deduction? 5 A. Yes. It was one example of several throughout 6 the Experience and Expertise sections in which Magellan 7 inconsistently reported the experience of an affiliate or 8 a parent company, et cetera, as it -- as it related to the 9 question.10 MR. RAY: Just give me a second. I think11 I'm done.12 BY MR. RAY:13 Q. By signing the offerors -- sorry.14 By signing the -- by signing as to the final15 scores, the five offerors, do you believe that -- do you16 believe that MMIC, by virtue of its offer, was the -- was17 the offeror most -- most advantageous to the State as18 reflected in the contents of its offer?19 A. Yes, I do.20 Q. And that's what you were signing and certifying.21 Is that correct?22 A. That's correct.23 MR. RAY: I don't have any other questions.24 Thank you.25 JUDGE MIHALSKY: We're at 5:00. And I'm

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1 sorry, it's your birthday. You'll have to come back 2 tomorrow. But I'll let you go early tonight at least. So 3 we're going to go off the record. 4 MR. RAY: Can we make sure there are going 5 to be some questions before we -- 6 JUDGE MIHALSKY: Okay. 7 MR. GORDON: We don't have any questions of 8 this witness, Your Honor. 9 MR. JOHNSTON: Nor do I.10 JUDGE MIHALSKY: Okay. And I would not hold11 it against you. You called this witness.12 Do you have further questions? Magellan?13 MS. MANJENCICH: Yes, Your Honor, we do.14 JUDGE MIHALSKY: Okay. Do you anticipate15 that it's going to be more than a half hour, say? And,16 again, I'm not going to hold this against you at all.17 MS. PREMEAU: No, Your Honor, that's our18 estimate or shorter.19 JUDGE MIHALSKY: Well, do you want to keep20 going?21 THE WITNESS: Yes, I would.22 JUDGE MIHALSKY: That's what we'll do, then.23 MR. KAITES: Judge, I think we can just ask24 a couple of questions and be done with this witness for25 today.

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1 MS. PREMEAU: Forever. 2 MR. KAITES: Without the need to keep her 3 until tomorrow. 4 MR. RAY: Thank you for that courtesy. 5 6 REDIRECT EXAMINATION 7 BY MS. MANJENCICH: 8 Q. Ms. Ault, you talked about technical advisers. I 9 think they're referred to here as experts, but they're --10 I noticed they were called technical advisers. Is that11 correct?12 A. I don't know what the specific terminology that13 the procurement folks used for that.14 Q. Who were they?15 A. There was a person -- I would have to actually go16 back and look. But one was Katrina from AHCCCS, I don't17 remember what her last name is.18 Q. And she was from AHCCCS?19 A. Yes. And Mike Sheldon from ADHS. There were20 also individuals from our IT department. And I'm not sure21 I'm going to remember their names. They're not easily22 rememberable.23 MR. RAY: They'll be sad to hear that.24 THE WITNESS: I'm sorry. Their names25 aren't. I believe it was -- yeah.

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1 BY MS. MANJENCICH: 2 Q. How many people from your IT department? 3 A. One person. I believe his name is Robbie, but it 4 stands for -- I think it stands for something. I don't 5 know what it all -- it may be much longer than that. 6 Q. Okay. And was Katrina Katrina Cope from AHCCCS? 7 Does that sound familiar? C-o-p-e? 8 A. It's AHCCCS' -- it was, at that time, AHCCCS' 9 Medicare specialist. I don't know what her last name is.10 Q. Anybody else that was a technical adviser?11 A. I can't think of it right now, no.12 Q. Were there any technical advisers offered in the13 area of behavioral health?14 A. No.15 Q. Was there anyone else from AHCCCS that16 participated or came to your meetings when the evaluation17 committee was together?18 A. As like an expert or -- I'm sorry?19 Q. Expert or otherwise, just came --20 A. I can't think of anyone else that -- there was21 nobody else who was participating as part of the22 evaluation process, other than the evaluators and the23 people I've already testified about.24 There were individuals that were brought in25 as technical experts. I believe that the people that I

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1 have identified are the totality, but I may have not 2 remembered one. 3 Q. Okay. And I know you're talking about 4 participating actually in the meetings. But how about 5 just observing? 6 A. No. 7 MS. MANJENCICH: No further questions, 8 Judge. 9 MR. RAY: Terrific.10 JUDGE MIHALSKY: Very good. We will see you11 all back here at 8:00 tomorrow. Thank you very much. You12 are free to go, Ms. Ault.13 THE WITNESS: Thank you, I appreciate it.14 MR. ECKSTEIN: Your Honor, I have one thing15 to bring up.16 JUDGE MIHALSKY: You may go. We're still on17 the record.18 MR. ECKSTEIN: There were five people that19 were scheduled for tomorrow plus one that wasn't examined20 today, so a total of six. One of the five scheduled for21 tomorrow is the subject of a motion that hasn't been fully22 briefed. We filed -- I should say MIHS filed a motion to23 quash the subpoenas. And as I understand it, Magellan24 will be filing a response sometime tonight.25 JUDGE MIHALSKY: Okay. The person who is --

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1 I am going to rule on the one motion that's fully briefed 2 right now, tonight, and post it probably tomorrow. But I 3 will not be able to rule on a motion that the response 4 hasn't been filed yet. It seems like we have more than 5 enough witnesses tomorrow. Can we put that one witness 6 who's the subject of the subpoena -- 7 MR. ECKSTEIN: That would seem to be the 8 right thing to do, and at least I raised it with counsel. 9 Are they prepared to do that?10 MS. PREMEAU: We're happy to wait for a11 ruling before we call anyone who has a pending motion to12 quash a subpoena, so --13 JUDGE MIHALSKY: Thank you.14 MS. PREMEAU: -- we have also notified that15 we will be calling -- tomorrow morning we'll start with16 Kathy Bashor, which we thought we could get through today.17 We will likely do Richard Szawara and Christine Ruth. And18 we will be prepared, as necessary, for a fourth witness to19 be available to give you -- give the parties time to20 complete the briefing if you issue a ruling on the pending21 subpoena.22 JUDGE MIHALSKY: Very good.23 MR. JOHNSON: That would be the fourth24 witness?25 MR. KAITES: Fourth witness.

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1 MR. GORDON: There could be a fourth 2 witness. 3 MS. PREMEAU: There could be a fourth 4 witness, but it basically depends on how this is going and 5 because we haven't left here yet. I mean, we will -- we 6 certainly will let you know. 7 MR. JOHNSON: Letting us know at the end of 8 the day, Your Honor, is just not fair. Trying to prepare 9 for a fourth witness at the end of the day, it's just not10 fair, Your Honor. And you asked, according to one of your11 CMOs, requested counsel to give us plenty of notice.12 MS. PREMEAU: Your Honor, what my13 anticipation is the three witnesses we have lined up are14 going to take a full day tomorrow.15 JUDGE MIHALSKY: I think it will probably be16 three witnesses, unless we start moving along at a much17 faster clip. I'm not criticizing the attorneys at all.18 However, we do have voluminous documentation and that19 slows us down necessarily to do a thorough job.20 And so I personally do not anticipate we'll21 get through more than three witnesses. In the event that22 we start a fourth, I'll hear the objections then. We23 stayed late tonight. If necessary, we could break a24 little bit early tomorrow on Friday and start our weekend25 early.

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1 MS. PREMEAU: I have no objection, Your 2 Honor. 3 MR. ECKSTEIN: In the circumstances, I will 4 advise the two MIH witnesses who are listed for tomorrow 5 that they will likely appear on Monday. 6 JUDGE MIHALSKY: Yes, I think that would 7 be -- that would be prudent. 8 MR. ECKSTEIN: Thank you. 9 MS. PREMEAU: Thank you, Your Honor.10 JUDGE MIHALSKY: With that, we're off the11 record. We'll see you at 8:00 tomorrow.12 (The hearing was adjourned at 5:07 p.m.)13141516171819202122232425

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1 STATE OF ARIZONA ) 2 COUNTY OF MARICOPA ) 3 I, Meri Coash, hereby certify that the 4 foregoing pages numbered from______to_______, inclusive, 5 constitute a full, true, and accurate record of the 6 proceedings had in the above matter, all done to the best 7 of my skill and ability. 8 DATED this______day of______________, 9 2013.1011 _____________________________12 Meri Coash, CRR #5032713141516171819202122232425

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Documents

IN THE OFFICE OF ADMINISTRATIVE HEARINGS MAGELLAN … · 9/19/2013 · 5 Roopali H. Desai, Esq. 2800 North Central Avenue 6 Suite 1200 Phoenix, Arizona 85004 7 602-224-0999 [email protected]