The Nw. Ill. Area Agency On Aging v. Basta, 2-21-0234

• Court: United States Appellate Court of Illinois
• Citation: 2022 IL App (2d) 210234
• Docket Number: 2-21-0234
• Parties: THE NORTHWESTERN ILLINOIS AREA AGENCY ON AGING, Plaintiff-Appellant, v. PAULA BASTA, in Her Official Capacity as Director of Aging, Defendant-Appellee.
• Decision Date: 29 June 2022

2022 IL App (2d) 210234

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

Court of Appeals of Illinois, Second District

June 29, 2022

Appeal from the Circuit Court of Winnebago County. No. 20-MR-38 Honorable Lisa Renae Fabiano, Judge, Presiding.

Timothy Scordato and Grant Nyhammer, of Rockford, for appellant.

Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Carson R. Griffis, Assistant Attorney General, of counsel), for appellee.

JUSTICE HUDSON delivered the judgment of the court, with opinion. Presiding Justice Bridges and Justice Hutchinson concurred in the judgment and opinion.

OPINION

HUDSON, JUSTICE

¶ 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) (5 ILCS 100/1-1 et seq. (West 2020)). Plaintiff sought the entry of an order stating that the rules were invalid. Defendant filed a motion to dismiss plaintiffs complaint, pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2020)), alleging that the matters complained of were untimely raised

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or exempt from the Act's rulemaking provisions (see 735 ILCS 5/2-615, 2-619(a)(5), (a)(9) (West 2020)). Following a hearing, the trial court dismissed counts I and II of the complaint without prejudice, dismissed count III with prejudice, and granted plaintiff leave to file an amended complaint.

¶ 2 Plaintiff subsequently filed a six-count, first amended complaint. Plaintiff again alleged that the Department had enacted various administrative rules that were not adopted pursuant to the procedure mandated by the Act and again sought entry of an order stating that the rules were invalid. Defendant again responded with a motion to dismiss pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2020)). Defendant alleged that the matters raised in the first amended complaint were untimely, were exempt from the Act's rulemaking provisions, or were not rules at all, and she alleged that plaintiff lacked standing to raise certain claims (735 ILCS 5/2-615, 2-619(a)(5), (a)(9) (West 2020)). The trial court dismissed with prejudice counts I through IV of the first amended complaint, pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2020)). The trial court dismissed with prejudice counts V and VI, pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2020)). Thereafter, plaintiff filed a notice of appeal challenging the dismissal of count III of its original complaint and the dismissal of all six counts of its first amended complaint. For the reasons set forth below, we affirm.

¶ 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 42 U.S.C. § 3001 et seq. (Older Americans Act). See 42 U.S.C. § 3025(a)(1) (2018)

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(requiring states to designate an agency to receive Older Americans Act funds); 20 ILCS 105/4 (West 2020) (providing that the Department "shall be the single State agency for receiving and disbursing federal funds made available under the 'Older Americans Act.' "). In implementing the Older Americans Act, the Department designates public and private nonprofit organizations throughout Illinois as "area agenc[ies] on aging" (AAAs), each of which provides services to senior citizens within a specific geographic area. 42 U.S.C. § 3025(a)(2)(A) (2018); 20 ILCS 105/3.07, 3.08 (West 2020). Under the Older Americans Act, the United States Department of Health and Human Services (HHS) distributes federal funds to the Department, which then distributes those funds to the AAAs. 42 U.S.C. § 3025(a) (2018); 20 ILCS 105/3.07, 3.08, 4 (West 2020). In turn, AAAs "make subgrants or contracts to service providers" that offer various services to older adults. 45 C.F.R. § 1321.1(c) (2020). Plaintiff, a private nonprofit entity, is the AAA for Area 1, which comprises the counties of Jo Daviess, Stephenson, Winnebago, Boone, Carroll, Ogle, De Kalb, Whiteside, and Lee. 20 ILCS 105/3.08 (West 2020).

¶ 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. 42 U.S.C. §§ 3030d(a)(10), 3058g(a)(3) (2018); 45 C.F.R. § 1321.63(a)(5) (2020); 20 ILCS 105/4.04 (West 2020). Although the Department appoints the State Long-Term Care Ombudsman (Ombudsman) and operates the Ombudsman's office, that office is separate from the Department's other divisions. 42 U.S.C. § 3058g(a)(1)(A) (2018); 45 C.F.R. § 1324.11(b)(1) (2020); 89 Ill. Adm. Code 270.134 (2019).

¶ 7 B. The Illinois Administrative Procedure Act

¶ 8 The Act sets forth the requirements for the promulgation of rules by administrative agencies. 5 ILCS 100/1-1 et seq. (West 2020). The Act applies to the Department. 20 ILCS

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105/5.02 (West 2020) (stating that the provisions of the Act "are hereby expressly adopted and shall apply to all administrative rules and procedures of the Department [on Aging]"). The Act defines a "rule" as an "agency statement of general applicability that implements, applies, interprets, or prescribes law or policy." 5 ILCS 100/1-70 (West 2020). However, the term does not include "statements concerning only the internal management of an agency and not affecting private rights or procedures available to persons or entities outside the agency," "informal advisory rulings," "intra-agency memoranda," or "the prescription of standardized forms." 5 ILCS 100/1-70 (West 2020). Moreover, while the Act requires administrative agencies to comply with its rulemaking provisions "[b]efore the adoption, amendment, or repeal of any rule" (5 ILCS 100/5-35(a) (West 2020)), the Act's rulemaking provisions do not apply to (1) "a matter relating solely to agency management or personnel practices or to public property, loans, or contracts" (5 ILCS 100/5-35(c) (West 2020)) or (2) "the adoption of any rule required by federal law in connection with which the Department is precluded by law from exercising any discretion" (20 ILCS 105/5.02 (West 2020)).

¶ 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. 5 ILCS 100/5-40(b) (West 2020); Weyland, 309 Ill.App.3d at 543. The public has 45 days from the date the notice is published in which to comment. 5 ILCS 100/5-40(b) (West 2020); Weyland, 309 Ill.App.3d at 543. If during the first 14 days of the first notice period the agency proposing the rule receives a request for a public hearing from 25 interested persons, an association representing at least 100 interested persons, the Governor, the Joint Committee on Administrative Rules (JCAR), or a unit of local government that may be

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affected, the agency is required to hold a public hearing. 5 ILCS 100/5-40(b) (West 2020); Weyland, 309 Ill.App.3d at 543.

¶ 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. 5 ILCS 100/5-40(c) (West 2020); 1 Ill. Adm. Code 220.600 (1994); Weyland, 309 Ill.App.3d at 544. JCAR is a bipartisan, bicameral legislative-support-services agency that reviews proposed and existing rules as well as agencies' compliance with the rulemaking procedure. 5 ILCS 100/5-90 (West 2020); 25 ILCS 130/1-5, 2-1 (West 2020); Department of Revenue, 357 Ill.App.3d at 356; Weyland, 309 Ill.App.3d at 544. The second notice period is also known as the legislative review period. Department of Revenue, 357 Ill.App.3d at 356; Weyland, 309 Ill.App.3d at 544 (citing Robert John Kane, Specific Rulemaking Procedures in Illinois, in Illinois Administrative Law § 5.19 (Ill. Inst. for Cont. Legal Educ. 1991)). During this time, JCAR reviews the second notice submitted by the agency. 1 Ill. Adm. Code 220.600 (1994); Weyland, 309 Ill.App.3d at 544. The Illinois Administrative Code sets forth certain requirements that a second notice must meet for JCAR to accept it. 1 Ill. Adm. Code 220.600 (1994); Weyland, 309 Ill.App.3d at 544. If the second notice is not satisfactory, JCAR may reject it. 1 Ill. Adm. Code 220.600 (1994); Weyland, 309 Ill.App.3d at 544. After reviewing the second notice, JCAR may submit questions to the agency. 1 Ill. Adm. Code 220.700(b) (1994); Weyland, 309 Ill.App.3d at 544. Upon completion of its review, JCAR will file either a certification of no objection, a statement of recommendation that the agency pursue some further action, a statement of objection to the proposed rule, or a statement prohibiting the filing of the proposed rule. 5 ILCS 100/5-40(c) (West 2020); 1 Ill. Adm. Code 220.1000 (1994); Weyland, 309 Ill.App.3d at 544.

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¶ 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...