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Radaszewski v. Garner

December 10, 2003


Appeal from the Circuit Court of Du Page County. No. 00-CH-1475 The Honorable Thomas J. Riggs and Robert E. Byrne Judges, Presiding.

The opinion of the court was delivered by: Justice Grometer


Plaintiff, Donna Radaszewski, filed an action as guardian for and on behalf of her son, Eric Radaszewski, in the circuit court of Du Page County. Plaintiff sought, inter alia, to enjoin the enforcement of certain regulations promulgated by the Illinois Department of Public Aid (IDPA) that bar her son from receiving the level of aid he received prior to turning 21. Jackie Garner, the defendant and director of the IDPA, moved to dismiss the complaint pursuant to section 2-615 of the Civil Practice Law (735 ILCS 5/2-615 (West 2002)). The circuit court agreed with defendant and granted judgment on the pleadings. For the reasons that follow, we reverse and remand.


The following is taken from plaintiff's complaint, supporting documentation, and other court documents of which we may take notice (Sundance Homes, Inc. v. County of Du Page, 195 Ill. 2d 257, 275 (2001) ("a court of review may take judicial notice of prior litigation")). Plaintiff is the mother of Eric Radaszewski, a disabled adult. Eric was born on August 5, 1979, and turned 21 in August 2000. He receives disability benefits through the federal Supplemental Security Income program and is eligible for Medicaid.

In February 1992, Eric was diagnosed with brain cancer. He suffered a stroke on December 24, 1993, after he had undergone radiation therapy, chemotherapy, and surgery. The cancer, stroke, and surgery have left Eric with a low level of mental and bodily functioning.

In Eric's physician's opinion, Eric requires individual 24-hour private duty nursing in order to survive. During the five years leading up to his twenty-first birthday, 16 hours of private duty nursing per day were funded by Medicaid. His parents, who were specially trained to care for him, provided the balance of the care. Medicaid also funded an additional 336 hours of nursing services per year to provide his parents some respite. Shortly before Eric's twenty-first birthday, state officials informed plaintiff that she should apply for funding through an alternate program. It was the IDPA's position that it did not fund private duty nursing for individuals over the age of 21 in accordance with what plaintiff alleges to be an unwritten policy. Plaintiff applied for the alternate program through the Office of Rehabilitation Services (ORS). On February 18, 2000, the ORS issued a decision stating that Eric was entitled to aid in the amount of $4,943 per month. According to plaintiff, this level of funding only pays for five hours of nursing per day. Plaintiff appealed the ORS's decision. On August 18, 2000, Ann Patla, the former director of the IDPA, issued an opinion affirming the ORS's decision.

On September 1, 2000, plaintiff filed an action in the United States District Court for the Northern District of Illinois seeking an injunction for an alleged violation of the federal Medicaid program. The federal court denied plaintiff's request for a preliminary injunction, and plaintiff appealed this ruling. Plaintiff then commenced the instant action on December 1, 2000. Plaintiff's initial complaint alleged violations of the state Medicaid plan, section 140.435 of the Illinois Administrative Code (89 Ill. Adm. Code §140.435 (2000)), breach of contract, and that the IDPA's unwritten policy concerning not providing private duty nursing to individuals over 21 years of age was, in fact, a rule that was not properly promulgated pursuant to the Illinois Administrative Procedure Act (Act) (5 ILCS 100/1-1 et seq. (West 2000)). Subsequently, the circuit court entered a temporary restraining order barring defendant from reducing Eric's nursing services.

On January 3, 2001, defendant submitted an amendment to the Department of Health and Human Services (HHS) that specified that private duty nursing was not covered for adults. The amendment was approved on February 2, 2001. The IDPA then initiated rulemaking under the Act by publishing notice of the proposed amendment in the Illinois Register on March 16, 2001. The notice stated that the amendment was a clarification. A hearing on the proposed amendment was held on May 23, 2001, and the amendment was submitted to the Joint Committee on Administrative Rules on July 23, 2001. The committee reviewed the amendment and issued no objection. On September 1, 2001, the IDPA filed a certified copy of the amended rules with the Secretary of State's office.


The instant appeal presents two main issues. First, we must determine whether after turning 21 Eric was eligible under the preamended version of the applicable regulations for the amount of private duty nursing plaintiff seeks. If he was not, then any discussion of whether the amendment was validly promulgated is beside the point. He would not be entitled to receive the aid plaintiff seeks for him even if the amendment was void. If we answer this question in the affirmative, we must consider whether the IDPA validly promulgated the amendment. As to the latter point, plaintiff raises two arguments. She first contends that the notice published by the IDPA of the proposed rulemaking was insufficient. Second, she argues that the IDPA's apparent compliance with the Act was a sham and that the IDPA had already determined it would adopt the proposed rule before it entered into the rulemaking process.

The first issue requires that we construe the various statutes and regulations on which the parties rely. This question is purely one of law, which we review de novo. Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 288 (2002). Since the trial court granted judgment on the pleadings, we must determine whether the trial court correctly concluded that no issue of material fact was presented by the pleadings and that defendant was entitled to judgment as a matter of law. Employers Reinsurance Corp. v. E. Miller Insurance Agency, Inc., 332 Ill. App. 3d 326, 334 (2002).

A. The Former Regulations

First, we turn to the question of whether Eric was entitled to the aid plaintiff now seeks under the regulations as they existed before the IDPA purportedly amended them. Administrative regulations are construed using the same standards that guide statutory interpretation. People ex rel. Department of Labor v. MCC Home Health Care, Inc., 339 Ill. App. 3d 10, 21 (2003). Accordingly, our primary goal is to ascertain the intent of the agency that drafted the regulation. People v. Bonutti, 338 Ill. App. 3d 333, 341 (2003). The best indicator of that intent is the language of the regulation itself. Bonutti, 338 Ill. App. 3d at 341. Where the language is clear, it must be given effect without resort to further aids of ...

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