APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. DOWNING, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the circuit court of Cook County awarding a writ of mandamus to compel the acting director of the Illinois Department of Public Aid to negotiate the rate of reimbursement to be paid to petitioners for services rendered to elderly and infirm recipients of public aid.
Petitioners, the Metropolitan Chicago Nursing Home Association and 45 Chicago-area nursing homes, brought this action for declaratory judgment and a writ of mandamus to compel the Governor of the State of Illinois, Joel Edelman, acting director of the Illinois Department of Public Aid, and other State officials, to do certain acts alleged to be required under the provisions of the Public Aid Code. (Ill. Rev. Stat. 1969, ch. 23, par. 1-1 et seq.) The petition sought a declaration that the present rates of reimbursement for medical services rendered on behalf of public aid recipients were not sufficient to satisfy the requirements of the Public Aid Code and requested the court to set a reasonable and fair reimbursement rate. The petition was filed as a representative action on behalf of petitioners and all others similarly situated.
On August 31, 1972, respondents filed a motion to dismiss, alleging, among other things, that the petition failed to state a cause of action and that the fees paid by the State to various dispensers of medical services were established by arms' length negotiations and not subject to mandamus. The motion further stated that the petition did not present a justiciable question and that petitioners were not proper representatives of the class they purported to represent. Shortly thereafter, petitioners filed a motion for summary judgment and affidavit in support thereof. On January 23, 1973, the trial court granted respondents' motion and entered an order dismissing the petition. Thereafter, on petitioners' motion, the order of dismissal was vacated and petitioners were given leave to file an amended petition.
The amended petition consisted of three counts. In count I, it was set out that petitioners, other than the Association, were long-term health-care facilities operating in compliance with Illinois law and rendering services to elderly and infirm recipients of public aid; that a contract was in full force and effect between petitioner nursing homes and the Department of Public Aid which entitled petitioners to reimbursement for services rendered; and that respondents had failed to administer certain provisions of the Code relating to the reimbursement of long-term health care. Specifically, petitioners charged that respondents had failed to make periodic surveys of cost-of-living factors in relation to needs of recipients of public aid (Ill. Rev. Stat. 1969, ch. 23, par. 12-4.15); that respondents had failed to establish proper standards by which public aid would be determined (Ill. Rev. Stat. 1969, ch. 23, par. 12-4.11); and that respondents had arbitrarily and capriciously fixed the base rate of reimbursement at a rate below that which is required by the Public Aid Code.
Count II stated that in fiscal year 1971-1972 the General Assembly passed an appropriations bill for public aid with a 15 percent increase in funding, and that the Governor unilaterally placed a freeze upon said increase causing petitioners to be damaged on a continuous basis and to be deprived of the proper rate of reimbursement. Petitioners sought a declaration that the 15 percent increase in the base rate of reimbursement be paid forthwith and requested a writ of mandamus directing respondents to approve and pay petitioners the increased rate.
In count III petitioners additionally alleged that the director of the Department had unilaterally refused to negotiate the proper rate of reimbursement with the providers of long-term health care. Such refusal was claimed to be in violation of section 5-7 of the Public Aid Code (Ill. Rev. Stat. 1969, ch. 23, par. 5-7), which provides as follows:
The Illinois Department shall negotiate with the various dispensers of medical services the fees or rates which shall govern payment for medical assistance provided under this Article."
Respondents filed a motion to dismiss the amended petition setting forth substantially the same defenses set out in their original motion to dismiss. The trial court denied respondents' motion, and petitioners thereupon renewed their motion for summary judgment. On April 30, 1973, the trial court granted petitioners' motion for summary judgment in part and directed that a pre-emptory writ of mandamus issue commanding Joel Edelman, the acting director of the Illinois Department of Public Aid, to negotiate with petitioners the rate of reimbursement to be paid for services rendered to elderly and infirm recipients of public aid. This appeal follows.
1 Mandamus will lie to compel a public official to perform a non-discretionary ministerial duty or to compel an officer to proceed with the exercise of discretion if the petitioner has established a clear legal right to have the duty performed and it appears that the official has arbitrarily and without authority refused to act. (Ickes v. Board of Supervisors (1953), 415 Ill. 557, 114 N.E.2d 669.) Where an official duty involves discretion, mandamus may not be used to force a public official to exercise his discretion in a particular way unless an abuse has been shown. (People ex rel. Hamer v. Board of Education (1974), 22 Ill. App.3d 130, 316 N.E.2d 820.) In order to prevail in a mandamus proceeding, the petitioner must allege material facts to show a clear and undoubted right to the relief requested. (Cooper v. Village of Lincolnshire (1969), 108 Ill. App.2d 251, 247 N.E.2d 434.) It is likewise essential that the petitioner allege material facts to show a clear duty on the part of respondent to act as requested. Brown v. City of Joliet (1969), 108 Ill. App.2d 230, 247 N.E.2d 47.
2 Mandamus will lie in a proper case to compel performance of a specific act but may not be used to compel a general course of conduct. (People ex rel. McGrady v. Carmody (1968), 104 Ill. App.2d 137, 243 N.E.2d 19.) An award of a writ of mandamus is improper where the duties involved are insufficiently specific or where issuance of the writ would require the court to assume supervision over a continuous course of official conduct. People ex rel. English v. Bowers (1962), 34 Ill. App.2d 46, 180 N.E.2d 45 (abstract opinion).
Relating the foregoing principles to the present cause, we find that petitioners have not met the requirements of pleading facts to show a clear and undisputed right to the writ of mandamus.
The substantive allegations contained in petitioners' amended petition set forth that respondents "unilaterally refused to negotiate the proper rate of reimbursement" with petitioners and in doing so have violated their duty under section 5-7 of the Public Aid Code. The allegation as to demand was that petitioners had repeatedly sought the relief requested by them from the Governor and Director of Public Aid and it was denied. The petition, however, ...