THE NORTHWESTERN ILLINOIS AREA AGENCY ON AGING, Plaintiff-Appellant, v. PAULA BASTA, in Her Official Capacity as Director of Aging, Defendant-Appellee.
No. 2-21-0234
APPELLATE COURT OF ILLINOIS SECOND DISTRICT
June 29, 2022
2022 IL App (2d) 210234
Honorable Lisa Renae Fabiano, Judge, Presiding.
Appeal from the Circuit Court of Winnebago County. No. 20-MR-38
Presiding Justice Bridges and Justice Hutchinson concurred in the judgment and opinion.
OPINION
¶ 1 Plaintiff, the Northwestern Illinois Area Agency on Aging, filed in the circuit court of Winnebago County a three-count complaint against defendant, Paula Basta, in her capacity as the director of the Department on Aging (Department). In the complaint, plaintiff alleged that the Department had enacted administrative rules that were not adopted pursuant to the procedure mandated by the Illinois Administrative Procedure Act (Act) (
¶ 2 Plaintiff subsequently filed a six-count, first amended complaint. Plaintiff again alleged that the Department had
¶ 3 I. BACKGROUND
¶ 4 A. The Parties
¶ 5 Defendant is the current director of the Department. The Department administers programs for senior citizens in Illinois, including receiving and disbursing federal funds made available to it under the legislation originally enacted as the Older Americans Act of 1965, now codified as amended at
¶ 6 The Department may also disburse Older Americans Act funds for the State Long-Term Care Ombudsman program, which is designed to investigate and act on complaints regarding long-term care facilities.
¶ 7 B. The Illinois Administrative Procedure Act
¶ 8 The Act sets forth the requirements for the promulgation of rules by administrative agencies.
¶ 9 Administrative rulemaking under the Act involves a three-step process. See Department of Revenue v. Civil Service Comm‘n, 357 Ill. App. 3d 352, 356-57 (2005); Weyland v. Manning, 309 Ill. App. 3d 542, 543-44 (2000). The first step, known as the first notice period, gives notice of the proposed rule in the Illinois Register.
¶ 10 At the end of the first notice period begins the second notice period, during which the agency must submit certain information to JCAR in a document called a second notice.
¶ 11 The third and final step is adoption of the rule. Department of Revenue, 357 Ill. App. 3d at 356-57; Weyland, 309 Ill. App. 3d at 544. An agency may file a proposed rule for adoption after (1) the second notice period has expired, (2) the agency has received a certification of no objection from JCAR, or (3) the agency has responded to a statement of objection from JCAR.
¶ 12 C. Plaintiff‘s Original Complaint
¶ 13 On January 16, 2020, plaintiff filed a three-count complaint against defendant. The complaint alleged that defendant “is using invalid rules to regulate the conduct of [plaintiff] and [plaintiff‘s] grantees.” Specifically, count I alleged that the Department‘s “Area Agencies on Aging Policies and Procedures Manual” (Manual), which comprises 12 sections and approximately 400 pages, is invalid because it was not adopted pursuant to the Act‘s rulemaking provisions (
¶ 14 On April 2, 2020, defendant filed a motion to dismiss plaintiff‘s complaint, pursuant to section 2-619.1 of the Code (
¶ 15 Defendant also argued that counts I and II of the complaint should be dismissed pursuant to section 2-615 of the Code (
¶ 16 Attached to defendant‘s motion to dismiss were various documents, including the entire Manual and a “verification” from Jose Jimenez, a supervisor with the Department. See
¶ 18 D. Plaintiff‘s First Amended Complaint
¶ 19 Plaintiff subsequently filed a motion for leave to file an amended complaint, which the trial court granted. To that end, on August 12, 2020, plaintiff filed a six-count, first amended complaint. The amended complaint alleged that six different “rules” enacted by the Department were invalid “because they have not been adopted pursuant to the *** Act.” Plaintiff therefore concluded that the policies were invalid. Counts I and II pertained to the entire Manual and the Monitoring Policy (section 1000 of the Manual), respectively. Count III pertained to an e-mail issued by the Department on August 5, 2020, in response to the COVID-19 pandemic (Tracking E-mail). The Tracking E-mail required AAAs to track and report certain information about senior centers, on a spreadsheet provided by the Department, including (1) planning and service area, (2) county, (3) physical site name, (4) physical site address, (5) phone number, (6) operating hours, (7) date reopened after closures mandated by the response, (8) date reclosed due to COVID-19 (if applicable), and (9) subsequent reopening date (if applicable). Count IV related to a July 2020 memorandum from the Ombudsman, requiring each AAA to complete an “Organizational Conflict of Interest Form” on an annual basis (Conflict-of-Interest Form). Count V pertained to a July 2019 document titled “Mandatory Medicaid Application and Redetermination for Community Care Program Participants” (Medicaid Policy). The Medicaid Policy explained that participants in the Community Care Program were “no longer *** exempt from applying for Medicaid,” so Care Coordination Units (CCUs) should verify whether a participant was receiving Medicaid benefits or had applied for them. The Medicaid Policy also described the procedures for determining a participant‘s eligibility. Finally, count VI pertained to a July 2020 memorandum from the Department‘s Office of Adult Protective Services regarding a “Report of Substantiation [(ROS)] Policy Clarification” (ROS Memorandum). The ROS Memorandum asked the State‘s Adult Protective Services provider agencies, in preparing final investigative reports of abuse, neglect, exploitation, or self-neglect, to confirm what “organization *** is providing care coordination services” to the alleged victim. The ROS Memorandum added that the ROS “should be sent to the organization coordinating care for the individual at the time of substantiation” and that “it is the responsibility of the [Adult Protective Services] provider to attempt to share the ROS with the care coordination agency that is actively involved with the individual.” Plaintiff attached to its first amended complaint the Monitoring Policy,
¶ 20 On September 23, 2020, defendant filed a combined motion to dismiss plaintiff‘s first amended complaint, under section 2-619.1 of the Code (
¶ 21 Pursuant to section 2-615 of the Code (
¶ 22 In its response to defendant‘s motion to dismiss, plaintiff argued that it had standing to pursue counts V and VI because, inter alia, (1) the Act does not have an explicit standing requirement, (2) plaintiff has “special legal status” as an advocate that authorizes it to “bring litigation on behalf of older adults for the Department‘s illegal conduct,” and (3) it contracts with the Department to manage the programs at issue. With respect to defendant‘s statute of limitations defense, plaintiff
¶ 23 While defendant‘s motion to dismiss the first amended complaint was pending, plaintiff filed a motion to add Kelly Richards, the Ombudsman, as a defendant to its action because she had sent an e-mail reminding plaintiff to complete the Conflict-of-Interest Form. Citing sections 2-405 and 2-406 of the Code (
¶ 24 In a memorandum opinion and order dated April 7, 2021 (but incorrectly file stamped April 8, 2020), the trial court granted defendant‘s motion to dismiss plaintiff‘s first amended complaint. The court agreed that plaintiff lacked standing to bring counts V and VI, because those counts challenged policies that applied only to CCUs and Adult Protective Service providers. The court rejected plaintiff‘s claim that it had standing because the Act does not have an explicit standing requirement, explaining that the fact that a statute does not expressly address standing does not mean that the standing doctrine is inapplicable. The court also rejected plaintiff‘s claim that it had standing via its status as an advocate for older adults, noting that the statutes and rules giving plaintiff such status say nothing about its standing to file lawsuits challenging rules that did not apply to it. Finally, the court determined that the fact that plaintiff manages the programs at issue does not make it subject to the directives. The court explained that plaintiff is not the entity that must comply with the directives and plaintiff has not alleged any action that it must undertake to comply with the directives, nor has it alleged any harm that it would suffer if it did not abide by the directives. Therefore, the court dismissed counts V and VI with prejudice pursuant to section 2-619 of the Code (
¶ 25 As for counts I through IV, the court granted defendant‘s section 2-615 motion (see
¶ 26 Plaintiff subsequently filed a notice of appeal (which it later amended) from (1) the trial court‘s April 7, 2021, memorandum opinion and order, which dismissed with prejudice counts I through VI of its first amended complaint, (2) the trial court‘s July 30, 2020, order dismissing with prejudice count III of plaintiff‘s original complaint, and (3) the “[o]rders taken from the Report of Proceedings before the [trial court] on July 28, 2020.”
¶ 27 II. ANALYSIS
¶ 28 On appeal, plaintiff argues that the trial court improperly dismissed with prejudice count III of its original complaint as well as all six counts in its first amended complaint. In general, plaintiff asserts that the trial court “improperly construed facts against [it] and made mistakes of law.” Prior to discussing these contentions, we address the appropriate standard of review.
¶ 29 A. Standard of Review
¶ 30 Defendant moved to dismiss plaintiff‘s complaints pursuant to section 2-619.1 of the Code (
¶ 31 A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based on defects apparent on its face.
¶ 32 In contrast, a motion to dismiss based on section 2-619 of the Code (
¶ 33 In considering a combined motion to dismiss pursuant to section 2-619.1, we accept all well-pleaded facts in the complaint as true, drawing all reasonable inferences from these facts in favor of the nonmoving party. Marshall, 222 Ill. 2d at 429; Malinksi, 2014 IL App (2d) 130685, ¶ 6. Our review under either section 2-615 or section 2-619 of the Code is de novo. Hadley v. Doe, 2015 IL 118000, ¶ 29; Malinksi, 2014 IL App (2d) 130685, ¶ 6. Further, we may affirm the trial court‘s judgment on any basis in the record, regardless of the court‘s reasoning. O‘Callaghan v. Satherlie, 2015 IL App (1st) 142152, ¶ 17.
¶ 34 B. The Original Complaint
¶ 35 We first address plaintiff‘s challenge to the dismissal of count III of plaintiff‘s original complaint. That count alleged that the Transparency Policy is an invalid administrative rule under the Act. As noted earlier, the trial court dismissed count III with prejudice, concluding that the Department showed that the Transparency Policy never took effect and noting that plaintiff did not offer a “counter affidavit to suggest that [the Department is] requiring people to follow the Transparency Policy.” Plaintiff argues that the dismissal of this count should be vacated because the trial court improperly construed facts against it. See Marshall, 222 Ill. 2d at 429 (noting that, in reviewing the sufficiency of a complaint, the court “accept[s] as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts” and “construe[s] the allegations in the complaint in the light most favorable to the plaintiff“). In addition, plaintiff argues that the trial court committed an error of law by relying on Jimenez‘s verification “to dispute facts.” Plaintiff has forfeited review of this issue.
¶ 37 In this case, plaintiff did not pursue any of these three exceptions to the Foxcroft rule. It did not stand on the dismissed pleading and file an appeal. Instead, it requested permission to file an amended complaint. Further, plaintiff‘s amended complaint did not refer to or adopt count III of the prior pleading. See Tabora v. Gottlieb Memorial Hospital, 279 Ill. App. 3d 108, 114 (1996) (noting that “[a] simple paragraph or footnote in the amended pleadings notifying defendants and the court that plaintiff was preserving the dismissed portions of his former complaints for appeal” is sufficient to protect against forfeiture under Foxcroft). Additionally, plaintiff did not appeal from the dismissal of count III prior to filing an amended pleading that neither refers to nor adopts the dismissed counts. Rather, it appealed the order dismissing count III of its initial complaint after the trial court ruled on the amended complaint. Given these circumstances, plaintiff has forfeited its challenge to the dismissal of count III of the original complaint. See Cwikla, 345 Ill. App. 3d at 27-28 (holding, sua sponte, that, pursuant to the Foxcroft rule, the plaintiffs forfeited their claim where they failed to reallege it in an amended pleading); see also Bonhomme v. St. James, 2012 IL 112393, ¶¶ 16-31 (holding that the plaintiff abandoned claims that were dismissed with prejudice and were not “referenced or incorporated” in subsequent amended complaint).1
¶ 38 Forfeiture notwithstanding, we would affirm the dismissal of count III of the original complaint. Defendant moved to dismiss count III of the original complaint pursuant to section 2-619(a)(9) of the Code (
¶ 39 “The phrase ‘affirmative matter’ encompasses any defense other than a negation of the essential allegations of the plaintiff‘s cause of action.” Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993); see also Cwikla, 345 Ill. App. 3d at 29 (noting that “affirmative matter” for the purposes of a section 2-619 motion is something in the nature of a defense that negates the cause of action completely or refutes crucial conclusions of law or conclusions of material fact contained in or inferred from the complaint). If the “affirmative matter” asserted is not apparent on the face of the complaint, the motion to dismiss must be supported by affidavit. Kedzie & 103rd Currency Exchange, Inc., 156 Ill. 2d at 116. By presenting an adequate affidavit in support of the asserted defense, the defendant satisfies the initial burden of going forward on the section 2-619 motion. Kedzie & 103rd Currency Exchange, Inc., 156 Ill. 2d at 116. The burden then shifts to the plaintiff to establish that the defense is unfounded or requires the resolution of an essential element of material fact before it is proven. Kedzie & 103rd Currency Exchange, Inc., 156 Ill. 2d at 116. The plaintiff may meet this burden by affidavit or other proof. Kedzie & 103rd Currency Exchange, Inc., 156 Ill. 2d at 116. “A counteraffidavit is necessary *** to refute evidentiary facts properly asserted by affidavit supporting the motion else the facts are deemed admitted.” Kedzie & 103rd Currency Exchange, Inc., 156 Ill. 2d at 116. If, after considering the pleadings and affidavits, the trial court determines that the plaintiff has failed to carry the shifted burden of going forward, the motion to dismiss may be granted. Kedzie & 103rd Currency Exchange, Inc., 156 Ill. 2d at 116.
¶ 40 Applying these principles to the case at bar, even if the promulgation of the Transparency Policy did not comply with the rulemaking provisions of the Act, whether it became part of the Manual and was an official policy or rule of the Department is an easily proved issue of fact that would defeat plaintiff‘s claim against defendant. Plaintiff did not append a copy of the entire Manual to its complaint. Thus, whether the Transparency Policy is part of the Manual is not apparent on the face of the complaint. Accordingly, defendant attached to her motion to dismiss a copy of the entire Manual as well as a “verification” from Jimenez, the Department‘s Older Americans Act services supervisor (see
(holding that a verification under
¶ 41 C. First Amended Complaint
¶ 42 Plaintiff also challenges the trial court‘s dismissal of all six counts of its first amended complaint. We address each count in turn. Prior to doing so, however, we note that plaintiff challenges the trial court‘s dismissal of several of the counts on the ground that the trial court improperly construed facts against it. See Marshall, 222 Ill. 2d at 429 (noting that, in reviewing the sufficiency of a complaint, the court “accept[s] as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts” and “construe[s] the allegations in the complaint in the light most favorable to the plaintiff“). We do not address these claims, since we conduct our own review of plaintiff‘s allegations de novo. See Hadley, 2015 IL 118000, ¶ 29; Malinksi, 2014 IL App (2d) 130685, ¶ 6; see also O‘Callaghan, 2015 IL App (1st) 142152, ¶ 17 (noting that a reviewing court conducting de novo review may affirm the court‘s judgment on any basis in the record, regardless of the trial court‘s reasoning).
¶ 43 1. Count I—The Manual
¶ 44 Plaintiff argues that the dismissal of count I of its first amended complaint should be vacated because the trial court committed two errors of law in dismissing that count. First, plaintiff contends that the trial court erred in dismissing count I, because it failed to find any pleading defects. Second, it contends that the case law cited by the court in support of its decision was inapplicable. Defendant responds that
¶ 45 We conclude that count I was properly dismissed for two reasons. First, with the exception of its claim regarding the Monitoring Policy, plaintiff failed to timely raise its claims regarding the Manual. Second, contrary to plaintiff‘s contention, there is a pleading defect in count I of plaintiff‘s first amended complaint.
¶ 46
¶ 47 In the trial court, plaintiff attempted to create a question of fact regarding the Manual‘s effective dates through an affidavit from its executive director, which was attached to plaintiff‘s response to defendant‘s motion to dismiss the first amended complaint. In the affidavit, the executive director stated that he was “disputing the effective dates for policies contained in the Manual,” because defendant did not establish how the effective dates were determined or how the effective dates can be changed. However, speculating that the Manual‘s sections may have had different effective dates cannot create a genuine issue of material fact to defeat a
¶ 48 Plaintiff also argued in the trial court that the Act‘s limitations period applies only to rules that have been “approved” under the Act‘s notice-and-comment rulemaking procedure. However, the Act expressly states that the limitations period applies to challenges “on the ground of non-compliance with the procedural requirements” of the Act‘s rulemaking provisions.
¶ 49 Secondly, even if plaintiff had timely challenged the Manual, there is, contrary to plaintiff‘s contention, a pleading defect in count I of plaintiff‘s first amended complaint. Count I alleges that the entire Manual is invalid, but, as defendant notes, aside from the Monitoring Policy, plaintiff cites no specific provision of the Manual that constitutes a rule under the Act. Defendant‘s first amended complaint consisted of the following components: (1) an introductory paragraph, (2) a section entitled “Nature” that stated that defendant “is using invalid rules to regulate the conduct of [plaintiff] and [plaintiff‘s] grantees” and alleged that “[t]he rules are invalid because they have not been adopted pursuant to the *** Act,” (3) a section listing the parties (paragraphs 1-5); (4) a brief overview of the Act (paragraphs 6-9), (5) a section entitled “Department Rules” that briefly discussed the six “rules” being challenged (paragraphs 10-28), (6) the six counts of the complaint (paragraphs 29-52), and (7) a prayer for relief.
¶ 50 With respect to the Manual, the “Department Rules” section of the complaint provided as follows:
“10. The Department has issued the Area Agencies Policies and Procedures Manual (Manual).
11. The Manual states that it ‘is the official document’ for regulating the conduct of [plaintiff] and [plaintiff‘s] grantees.
12. [Plaintiff] risks losing funding by not complying with the Manual.”
Count I alleged as follows:
“29. Paragraphs 1-28 above are incorporated into Count I.
30. The Manual is a rule which must be adopted through the Rule Process.
31. The Manual has not been adopted through the Rule Process.
32. The Manual is an invalid rule under the *** Act.”
In its prayer for relief, plaintiff requested that the trial court enter an order “stating” that the Manual is invalid.
¶ 51 As the foregoing illustrates, while plaintiff makes conclusory allegations that the Manual is a rule that must be adopted through the Act‘s rulemaking procedures, nowhere in count I of the first amended complaint does plaintiff identify the provisions of the Manual it is challenging or set forth facts supporting why the various sections of the Manual constitute a rule. This was fatal to count I of plaintiff‘s complaint. See Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009) (noting that a plaintiff may not rely on mere conclusions of law or fact unsupported by specific factual allegations); Pilotto v. Urban Outfitters West, L.L.C., 2017 IL App (1st) 160844, ¶ 8 (observing that Illinois is a fact-pleading state; therefore,
¶ 52 2. Count II—The Monitoring Policy
¶ 53 Next, plaintiff argues that the dismissal of count II of its first amended complaint should be vacated because the trial court improperly determined that the Monitoring Policy was exempt from the Act‘s rulemaking provisions under
¶ 54 Defendant‘s response is threefold. First, defendant argues that, rather than setting forth substantive rights or duties, the Monitoring Policy “merely describes existing federal and state laws requiring that the Department and [plaintiff] monitor their respective subrecipients.” Second, defendant responds that, even if some provisions in the Monitoring Policy constitute “rules,”
¶ 55 Initially, we address defendant‘s argument that plaintiff‘s claim regarding the Monitoring Policy is untimely. As noted above, the Monitoring Policy comprises section 1000 of the Manual. Defendant acknowledges that the Monitoring Policy was published on August 1, 2018, which is less than two years prior to plaintiff‘s initiation of this lawsuit. She claims, however, that the specific provisions of the Monitoring Policy challenged in count II of the first amended complaint have been in the Manual since 2007. In this regard, she asserts that, although the Monitoring Policy was changed in August 2018, the primary change at that time was the addition of subsection 1002, which plaintiff does not challenge in its first amended complaint. Since plaintiff‘s challenge to the Monitoring Policy involves provisions enacted more than two years prior to the date of the initiation of this litigation, defendant maintains, count II of the first amended complaint should be dismissed as untimely. See
¶ 57 Older Americans Act grants are subject to the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Uniform Guidance), which is codified at
¶ 58 For purposes of the Uniform Guidance, both the Department and AAAs are considered “non-Federal entities.” See
¶ 59 As pass-through entities, both the Department and AAAs must “[m]onitor the activities” of their respective subrecipients “as necessary to ensure that the subaward is used for authorized purposes, in compliance with Federal statutes, regulations, and the terms and conditions of the subaward; and that subaward performance goals are achieved.”
¶ 60 At least annually, each nonfederal entity receiving Older Americans Act funds—service providers, AAAs, and the Department—must submit “performance reports” to the entity from which it received federal funds, i.e., service providers report to AAAs and AAAs report to the Department.
¶ 61 Plaintiff challenged seven provisions of the Monitoring Policy as constituting improper rulemaking by the Department. First, plaintiff alleged that the Department engaged in rulemaking by providing in section 1007(A)(1) of the Manual that AAAs “will develop and use systematic procedures and an instrument for conducting subgrantee and subcontractor evaluations.” As detailed above, however, an AAA already has a responsibility to monitor and evaluate its subgrantees and subcontractors. See, e.g.,
¶ 62 Second, plaintiff challenged section 1007(A)(2)(a) of the Manual, which requires that the AAA evaluation instrument for subgrantees or subcontractors provide “a comprehensive on-site evaluation of sub grantees and/or subcontractors at least once during the [AAA‘s] area plan cycle” and “conduct additional evaluations of subgrantees/subcontractors based on the risk assessment and monitoring process.” As noted above, however, federal regulations envision that pass-through entities conduct “on-site” reviews of subrecipients to detect deficiencies pertaining to any federal grant.
¶ 63 Third, plaintiff challenged section 1007(A)(2)(c) of the Manual, which requires the “submission of a written report on the [AAA‘s] findings to the subgrantees and/or subcontractors within a reasonable time period.” However, federal
¶ 64 Fourth, plaintiff challenged section 1007(C) of the Manual, which requires AAAs to “maintain documentation of all review, monitoring and related follow-up activities.” This provision, however, merely restates an AAA‘s recordkeeping duties under federal rules. See
¶ 65 Fifth, plaintiff challenged section 1004(C)(1)(c) of the Manual. That section provided that, when the Department recommends corrective action as a result of its evaluation of an AAA, “if needed, the [AAA] will develop and implement a work plan to ensure that [it] carries out recommended corrective action in a timely manner.” But the federal regulations require follow-up to ensure that a subrecipient “takes timely and appropriate action on all deficiencies pertaining to the Federal award.”
¶ 66 Plaintiff also challenged section 1003(B)(1) of the Manual, which provides that evaluations will be “performed on-site a minimum of once during the Area Plan cycle which has been by [sic] Department *** policy to be a three-year time period to determine the extent of the agency‘s adherence with conditions of awards documents, prevailing statutory and regulatory laws, rules, policies and significant procedures” and allows that the Department “may conduct additional evaluations of an [AAA] based on the risk assessment and monitoring process outlined in Section 1002 and Section 1005.” As noted above, however, the requirement that AAAs conduct reviews at least once during the area plan cycle is implicit in the federal regulations’ requirement that the activities of subrecipients be monitored.
¶ 67 Finally, plaintiff contests sections 1002 through 1006 of the Manual, which require AAAs to “comply with Department risk assessments, evaluations, on-site evaluations, monitoring, and special reviews of [AAAs].” Again, the federal and state regulations referenced above mandate that AAAs comply with such monitoring and evaluations. The Manual therefore adds no requirement to comply with mandates not already expressed in existing laws.
¶ 68 Plaintiff contends that the Manual makes “significant changes” to existing federal and state laws. However, plaintiff does not indicate what those changes are or explain how the Manual‘s language alters any existing federal and state monitoring rules. Plaintiff has therefore forfeited its conclusory argument that the Manual made “significant changes” to existing law. Ill. S. Ct. R.
¶ 70 3. Count III—The Tracking E-mail
¶ 71 Next, plaintiff argues that the dismissal of count III of its first amended complaint should be vacated because the trial court improperly determined that the Tracking E-mail was not a rule. Plaintiff argues that, in so concluding, the trial court committed three errors of law. First, the court failed to find any pleading defects in count III. Second, the court improperly read an exception into the Act for “minor administrative tasks.” Third, the court improperly relied on federal case law. Defendant responds that the trial court properly dismissed count III. Defendant posits that the Tracking E-mail was not subject to the Act‘s rulemaking provisions because its implementation was merely the “prescription of a standardized form” that did not impose on AAAs any new duties that did not already exist in federal or state law.
¶ 72 In count III of its first amended complaint, plaintiff alleged that the Tracking E-mail constituted a rule that must be adopted through the Act‘s rulemaking provisions because the Department “exercised discretion” by including policies not required by federal law. Specifically, plaintiff cited a requirement in the Tracking E-mail that AAAs track and report, via a provided spreadsheet, information such as the operating hours of senior centers, the date of reopening, the date of reclosure due to COVID-19 (if applicable), and the date of the subsequent reopening. Plaintiff suggested that, by imposing these duties, the Department “exercised discretion,” thereby taking the Tracking E-mail outside of the exception providing that “the adoption of any rule required by federal law in connection with which the Department is precluded by law from exercising any discretion.” See
¶ 73 We conclude that the trial court properly dismissed count III of the first amended complaint. The Tracking E-mail was not subject to the Act‘s rulemaking provisions for two reasons. First, by asking AAAs to keep track of senior centers that had reopened during the COVID-19 pandemic, the Department was complying with federal regulations that require it to ensure that senior centers “compl[y] with all applicable State and local health *** laws, ordinances or codes.”
centers” were followed and that the “the health, safety, and welfare of *** seniors” were being protected. Therefore, the Department appropriately requested that AAAs assist in collecting this information.
¶ 74 Second, the Tracking E-mail does not constitute a “rule” under the Act because its implementation involved the “prescription of standardized forms.” The spreadsheet was standardized, as it was sent to all AAAs in the same format and sought the same information. See Webster‘s Third New International Dictionary 2223 (2002) (defining “standardize” as to “make uniform“). Requiring AAAs to complete the spreadsheet was merely a “prescription” that that form be used. See Webster‘s Third New International Dictionary 1792 (2002) (defining “prescription” in relevant part as “the process of laying down authoritative rules or directions“).
¶ 75 Plaintiff‘s brief fails to explain why the Tracking E-mail constitutes a rule. Instead, it takes issue with the trial court‘s analysis of the Act, the Department‘s rules, and case law. But, as discussed above, the trial court‘s reasoning is beside the point where, as here, we apply de novo review. See O‘Callaghan, 2015 IL App (1st) 142152, ¶ 17.
¶ 76 For the foregoing reasons, we therefore affirm the trial court‘s dismissal of count III of plaintiff‘s first amended complaint.
¶ 77 4. Count IV—The Conflict-of-Interest Form
¶ 78 Next, plaintiff argues that the dismissal of count IV of its first amended complaint should be vacated because the trial court improperly determined that the Conflict-of-Interest Form was not a rule subject to the Act‘s rulemaking procedure. In support of this claim, plaintiff argues that the trial court made several legal errors, including failing to grant its motion to add the Ombudsman as a necessary party and misreading “the exception” to the Act‘s rulemaking provisions in section 5.02 of the Illinois Act on the Aging. Defendant responds that the Conflict-of-Interest Form was not subject to the Act‘s rulemaking provisions because its implementation was merely the “prescription of a standardized form” that did not impose on AAAs any duties that did not already exist in federal or state law. Further, defendant urges this court to uphold the trial court‘s denial of plaintiff‘s request to add the Ombudsman as a party, for two reasons. First, defendant argues that the record on appeal is inadequate to address the issue. Second, defendant argues that adding the Ombudsman would have been “futile.”
¶ 79 We first address whether the trial court erred in denying plaintiff‘s motion to add the Ombudsman as a necessary party. We agree with defendant that plaintiff has failed to provide an adequate record to address this issue. In this regard, we note that, as the appellant, it was plaintiff‘s burden to provide this court with a complete record on appeal. Foutch v. O‘Bryant, 99 Ill. 2d 389, 391 (1984). Any doubts arising from the incompleteness of the record should be construed against the plaintiff, and, without a complete record, a reviewing court should presume that the trial court‘s ruling was correct. Foutch, 99 Ill. 2d at 392; Fauley v. Metropolitan Life Insurance Co., 2016 IL App (2d) 150236, ¶ 60. As one court has noted, this rule is “especially” important “when the abuse-of-discretion standard applies,” because knowing the basis of the court‘s order is essential
¶ 80 In this case, the trial court had discretion to grant or deny plaintiff‘s motion to add the Ombudsman as a party.
¶ 81 Plaintiff disputes that the trial court had discretion to add the Ombudsman as a party. In this regard, plaintiff directs us to language in
¶ 82 Plaintiff insists that the Department could not have adequately represented the interests of the Ombudsman because the Ombudsman and the Department are “clearly adverse parties” under several provisions of
¶ 83 We now turn to whether the trial court properly dismissed count IV of the first amended complaint. Count IV alleged that the Conflict-of-Interest Form constituted a rule that must be adopted through the Act‘s rulemaking provisions because the Department “exercised discretion” by including policies not required by federal law. Specifically, plaintiff cited a requirement that each AAA complete the Conflict-of-Interest Form on an annual basis. Plaintiff also referenced a statement in the Conflict-of-Interest Form that the “[f]ailure to disclose a possible conflict of interest may be grounds for removal of designation.” However, federal law requires the Department to report and identify any organizational conflict of interest.
¶ 84 Plaintiff seems to acknowledge that federal law requires the Department to report and identify organizational conflicts of interest. It argues, however, that the exception provided for in section 5.02 of the Act “was not intended to exclude from the [Act‘s rulemaking provisions] policy statements based on federal or state law.” (Emphasis in original.) In other words, it is plaintiff‘s position that the Department exercised discretion in publishing the Conflict-of-Interest Form, because it does not recite the text of the federal conflict-of-interest requirements verbatim. We find plaintiff‘s argument misplaced. First, plaintiff cites no authority for this proposition. Thus, this argument is forfeited. See Ill. S. Ct. R.
¶ 85 Secondly, like the Tracking E-mail, the Conflict-of-Interest Form does not constitute a “rule” under the Act, because its implementation involved the “prescription of standardized forms.” The Conflict-of-Interest Form was standardized, as it was sent to all AAAs in the same format and sought the same information. See Webster‘s Third New International Dictionary 2223 (2002) (defining “standardize” as to “make uniform“). Further, requiring AAAs to complete the Conflict-of-Interest Form was a “prescription” that that form be used. See Webster‘s Third New International Dictionary 1792 (2002) (defining “prescription” in relevant part as “the process of laying down authoritative rules or directions“).
¶ 86 For the foregoing reasons, we therefore affirm the trial court‘s dismissal of count IV of plaintiff‘s first amended complaint.3
¶ 88 Next, plaintiff argues that the trial court erred in dismissing count V (regarding the Medicaid Policy) and count VI (regarding the ROS Memorandum) on the basis that plaintiff lacked standing to raise the claims asserted in those counts. Defendant disagrees, arguing that neither the Medicaid Policy nor the ROS Memorandum applied to plaintiff, so the trial court correctly determined that plaintiff lacked standing to challenge those policies.
¶ 89 The purpose of the standing doctrine is to ensure that courts decide actual specific controversies and not abstract or moot questions. Powell v. Dean Foods Co., 2012 IL 111714, ¶ 36. Standing requires that a party have a real interest in the action and its outcome. Wexler v. Wirtz Corp., 211 Ill. 2d 18, 23 (2004). Thus, to have standing to bring a claim, a party must assert its own legal rights and interests rather than assert a claim for relief based upon the rights of a third party. Powell, 2012 IL 111714, ¶ 36. Typically, lack of standing to bring an action is an affirmative defense, and the burden of proving the defense is on the party asserting it. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252 (2010); Bayview Loan Servicing, LLC v. Cornejo, 2015 IL App (3d) 140412, ¶ 12. Moreover, lack of standing is an affirmative matter for purposes of
¶ 90 Instructive to our analysis is Pre-School Owners Ass‘n of Illinois, Inc. v. Department of Children & Family Services, 119 Ill. 2d 268 (1988), a case cited by the trial court in its April 2021 memorandum opinion and order. In that case, the supreme court considered whether the plaintiffs had standing to challenge a particular regulation that had been promulgated by the Department of Children and Family Services (DCFS) under the Child Care Act of 1969 (Ill. Rev. Stat. 1985, ch. 23, ¶¶ 2211 through 2230). The regulation barred from child-care employment persons who had been identified as having committed child abuse or neglect as well as persons awaiting trial or investigation on such allegations. See
¶ 91 In light of the supreme court‘s analysis in Pre-School Owners Ass‘n of Illinois, Inc., we conclude that the trial court properly granted defendant‘s motion to dismiss counts V and VI of the first amended complaint on the basis of a lack of standing. The Medicaid Policy states that it pertains to CCUs and specifies that its purpose is to “advise [CCUs] of changes in [the Department‘s] policy and procedure related to Mandatory Medicaid application, enrollment, and redetermination.” The Medicaid Policy explained that participants in the Community Care Program were “no longer *** exempt from applying for Medicaid,” so CCUs should verify whether a participant was receiving Medicaid benefits or had applied for them. Thus, the Medicaid Policy is directed to CCUs, not plaintiff or any other AAA. Indeed, nowhere in its complaint does plaintiff allege that it had sustained a direct injury as a result of the enforcement of the Medicaid Policy or that it was in imminent danger of sustaining such an injury. Additionally, plaintiff did not allege that the Medicaid Policy requires anything of it or that the Department had taken any action against plaintiff for violating the Medicaid Policy. Therefore, the trial court properly granted defendant‘s motion to dismiss count V of the first amended complaint based on a lack of standing.
¶ 92 We reach the same conclusion with respect to the ROS Memorandum. The ROS Memorandum is directed to Adult Protective Services provider agencies. The ROS Memorandum asked the State‘s Adult Protective Services provider agencies, in preparing final investigative reports of abuse, neglect, exploitation, or self-neglect, to confirm what “organization *** is providing care coordination services” to the alleged victim. The ROS Memorandum further provides that the ROS “should be sent to the organization coordinating care for the individual at the time of substantiation” and that “it is the responsibility of the [Adult Protective Services] provider to attempt to share the ROS with the care coordination agency that is actively involved with the individual.” Thus, the ROS Memorandum is directed at Adult Protective Services provider agencies, not plaintiff or any other AAA. Nowhere in its complaint does plaintiff allege that it had sustained a direct injury as a result of the enforcement of the ROS Memorandum or that it was in imminent danger of sustaining such an injury. Additionally, plaintiff did not allege that the ROS Memorandum requires anything of it or that the Department had taken any action against plaintiff for violating the ROS Memorandum. Therefore, the trial court properly granted defendant‘s motion to dismiss count VI of the first amended complaint based on a lack of standing.
¶ 93 Plaintiff insists that it has standing because its first amended complaint alleges that it had been designated the AAA for Area 1 and that it “oversees” the Community Care Program and Adult Protective Services programs in its service area. However, plaintiff cites no authority stating that an entity‘s general oversight of a government program is sufficient to confer standing to challenge aspects of a policy that are inapplicable to it. Indeed, such a principle is inconsistent with the supreme court‘s pronouncement that, to have standing, a party challenging a law must have sustained, or be in immediate danger of sustaining, a direct injury as a result of its enforcement. See Pre-School Owners Ass‘n of Illinois, Inc., 119 Ill. 2d at 287.
¶ 94 Plaintiff
¶ 95 Plaintiff also contends that the trial court should have rejected defendant‘s standing argument because she did not specify the subsection of
¶ 96 Defendant filed her motion to dismiss pursuant to
“Where a motion does not comply with section 2-619.1, commingles claims, or creates unnecessary complications and confusion, trial courts should sua sponte reject the motion and give the movant the opportunity (if they wish) to file a motion that meets the statutory requirements of section 2-619.1, or the movant may choose to file separate motions under section 2-615 and section 2-619 ***.” Reynolds v. Jimmy John‘s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 21.
¶ 97 Here, defendant complied with the requirement in
¶ 98 D. Motion for Sanctions
¶ 99 Prior to concluding, we note that plaintiff has filed a motion for sanctions pursuant to
¶ 100 In its motion, plaintiff argues that defendant should be sanctioned for (1) violating the Illinois Rules of Professional Conduct by claiming to represent an adverse party (the Ombudsman), (2) violating the Illinois Rules of Professional Conduct and the Illinois Supreme Court Rules by misstating facts and law, and (3) disputing facts in violation of the Marshall standard (see Marshall, 222 Ill. 2d at 429). Plaintiff posits that violating the Illinois Rules of Professional Conduct and misstating facts and law are sanctionable under
¶ 101 We agree with defendant that sanctions are not warranted. Plaintiff‘s motion does not point to any harassing or bad-faith conduct on defendant‘s part. Although plaintiff takes issue with the merits of the arguments in defendant‘s response brief, that is not a basis for
¶ 102 III. CONCLUSION
¶ 103 For the reasons set forth above, we affirm the judgment of the circuit court of Winnebago County.
¶ 104 Affirmed.
2022 IL App (2d) 210234
| Decision Under Review: | Appeal from the Circuit Court of Winnebago County, No. 20-MR-38; the Hon. Lisa Renae Fabiano, Judge, presiding. |
| Attorneys for Appellant: | Timothy Scordato and Grant Nyhammer, of Rockford, for appellant. |
| Attorneys for Appellee: | Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Carson R. Griffis, Assistant Attorney General, of counsel), for appellee. |