FIFTH DI VISI ON September 26, 2008

No. 1-08-1061

RICHARD P. CARO, a State of I llinois Taxpayer on Beha lf of ) Appeal from the and for the Benefit of the State of I llinois, ) Circuit Court of ) Co ok Co un ty. Plaintiff-Appellee ) ) (Ronald Gidwitz and Gregory Baise, ) ) Plaintiffs-Intervenors-Appe llees), ) ) v. ) No. 07 CH 34353 ) HONORABLE ROD B LAGOJEVI CH, Governor of the State of ) Illinois, THE IL

LI NOIS DEPARTMENT OF HEAL THCARE ) AND FAMIL

Y SERVICES, BARRY S. MARAM, Director of ) IDH FS, ) ) Defend ants-App ellants ) ) (The Department of Public Health, Damon Arnold, Director, and ) Daniel W. Hynes, Comptroller, ) ) Defend ants; ) ) Gr eg or y Ja ca wa y et al ., Ind iv id ua ll y an d o n B eh al f o f A ll Si mi la rl y ) Situated People, ) ) Defend ants-I nterven ors; ) ) The State of Il linois, ) The Hono rable ) James R. Epstein, Intervenor). ) Judge Presi ding.No. 1-08-1061

1 These de fendant s have no t partici pated in t he instan t appeal

. 2 PRESID ING

JUSTICE

FIT ZGERAL D SMITH deliver

ed the opi nion of the

court: Plaintiff -appell ee Richa

rd P. Caro , a State o f Ill inois taxpay er, joine d by

plaintiffsintervenors-appellees Ronald Gidwitz and Gregory Baise (collectively , plaintiffs), moved the trial court for a preliminary injunction against defendants-appellants Governor of Illinois Rod Blago jevich, t he I llinois De

partmen t of Heal thcare and Fam ily S ervice s, and Dir

ector B arry

S. Maram (defendants or as named), a s well as defendants the Illinois Depa rtment of Public Health, Director Damon A

rnold, an d Comptroll er Danie l W. Hy nes, 1 to pro hibi t them from e xpan ding, funding and oper ating a healthc are pro gram a s violative of statutory

law and the Ill inois Constitution . The tria

l court g ranted p laintiff

s' requ est and imp osed the i

njunction . In th

is interlocutory appe al, defendants contend that the trial court erre d in its decision to grant the injunction and failed to balance equitable factors which suppor t its denial. Defendants ask that we overturn the trial court's issuance of the injunction, uphold the validity of their healthca re program, and grant any

other proper relief. We note for the record that plaintiff Caro filed a pro se appelle e brief

in this matte

r in addition to joining in the separate brief filed by his coplaintiffs/intervenors Gidwitz and Baise. Gregory Jacaway filed a

n appearance on his behalf and on that of a ll others similarly situated as defendants-intervenors, but did not file a brief in this cause. Also, the State of I llinois, via the office of the Attorney

General, filed a brief in its capacity as an intervenor, and the National Federation of I

ndependent Business filed an amicus brief. For the f ollowing reasons , we aff

irm.No. 1-08-1061

3 BACKGROUND The principal facts involved in this cause are not in dispute. In 1997, the federa

l government enacted the State Children's H ealth Insurance Prog ram (SCHIP), which sought to provide hea lth insurance to children whose families could not afford private insuranc e but who l ikewise d id not qual ify

for Medi caid. I

llinois par

ticipate d in this program by

enacting its own version pursuant to a statute entitled the Children's He alth Insurance Program Act (CHI

PA), to be run by def

endant the Department of Healthcare and Family Servic es (DHFS) . In r

eturn, I llinois re ceived a

65% fede

ral match in funds e

xpended fo

r CHIPA coverage, compare d to only a 50% fede ral match in funds expended for Medicaid coverag e. In 2001, the federa

l government permitted Illinois to submit waivers to obtain fede ral funds and extend hea

lth insura nce cov erage

to the par

ents/ca retake rs of thos e childr

en enrol led in CHIPA. I llinois did so, the federal government approved it, and the F amilyCare Prog ram was created pursuant to the I llinois Administrative Code (89 Ill. Adm. Code §120.32, amended at 29 Ill. Reg. 820, eff. January 1, 2005). Under this program, DHFS was able to expand CHIPA-like health insurance coverage to eligible adults--again, those whose fa mily income exceeded the maximum allowed for eligibility under Medica id but could not afford private health insurance. Initially , Illinois set the eligibility requirement to receive covera ge under the Family

Care Program at 49% of the federa l poverty limit (FPL

); that is, those adults whose income was at 49% of the

FPL w ere elig

ible for health insu

rance u nder the progra m. Throug

h the y ears, th is level was increased, reaching 185% of the FPL in January 2006. By 2007, the sc ope of the federal SCHI P program became uncertain a s the United StatesNo. 1-08-1061

4

Co ngr ess and th e Pr esi den t co ul d no t ag ree on f und in g or th e br ead th of c ove rag e, a nd S CHIP and its accompany

ing state waivers were set to expire (pending extension attempts) in December 2007. This

jeopard ized the 65 % feder

al fundin g match for state progra ms such as

Illinois' CHIPA covering c

hildren and the Family

Care Program covering a

dults. In an effort to preser ve at least the 50% federal match Illinois received under Medicaid, DHFS declare d on November 7, 2007, that an emergency

existed warranting the promulgation of an "E mergency Rule" pursuant to the Public Aid Code, which governs Medicaid in I llinois. The Emergency Rule sought to not only preserve

FamilyCare

Program coverage

at the levels already

in place, but also insisted on the further expansion of coverage, via Medicaid, to adults with incomes up to and including 400 % of th e FP L ( i.e. , an income of $83,000 per y ear for a family

of four), who would pay vary ing pre miums for c overag e rece ived depe nding on their inc omes. Fo r this expan sion to Medicai d and incr

ease in p ercent

age, D HFS reli ed on sec

tion 5-2( 2)(b) of

the I llinois Publi c Aid Code (305 IL CS 5/5-2(2)(b) (West 2006)), which permits the provision of medical assistance for all people who would be determined eligible for basic maintenance under the "Temporar y Assistance for Needy

Families" (TANF) article of the Public Aid Code (305 IL CS 5/4-0.5 et seq

. (West 2006)) by disreg arding the maximum earned income permitted by federal law. Defendant Governor Blagojevich appr oved the expansion, and DHFS submitted the Emergency Rule and supporting documentation, along with a "Permane nt Rule" to the same effect, to the Joint Committee on Administrative Rules (JCAR) in accordance with emergency rule-making procedures under the I llinois Administrative Procedure Act (5 ILCS 100/1-1 et seq . (West 2006)).No. 1-08-1061

5

After review, JCAR objected to and suspended DHFS' Emer gency Rule, finding that no emerg ency

situation e

xisted war

ranting adoption o f the pro

posed rul e and tha

t the rule was not in the public's interest; JCAR effectively suspended and invalidated the Emergency Rule and the Family Care Pro gram it c

reated . Accor

dingly , the I llinois Sec

retary of State is sued a fi ling to th is effect, prohibiting implementation of the Emerge ncy Rule. DHF S, however, enacted the Emergency

Rule and began enrolling adults with incomes up to 400% of the F PL into Medicaid. Plaintiffs filed suit against defendants, challenging the expansion of the FamilyCare Program on several grounds, including the lack of authority

to collect premiums under Medicaid, the lack of consti tutional a uthority to raise r evenue , the lac

k of authority

to expand th e FPL eligibility perce

ntage to 400%, the lack of an appropr iation for the expansion, and the suspension of the Emergency

Rule by JCAR. Plaintiffs sought to enjoin defendants from further implement

ing the F amily

Care Pro gram. While plaintiffs' cause was pending, DHF S' Permanent Rule came before JCAR. Again, JCAR found it to be contrary to public interest and prohibited def endants from implementing the FamilyCare

Program, and again, the I llinois Secretary of State issued a filing to this effect. Howeve r, defe ndants continued to

enroll a dults with in

comes up t

o 400% of t

he FPL into Medicaid. In April 2008, the trial court held a he aring on plaintiffs' motion for preliminary injunction . In it s memoran dum opinion

and orde r, the co urt focu sed princ ipally

on defen dants' relianc e on sect

ion 5-2(2 )(b) of

the Public

Aid Code a s the authority for their actions in expanding the FamilyCare Program under Medicaid. The c ourt noted that, as this involvesNo. 1-08-1061

6

TANF, the Family

Care Program would need to meet the elig ibility requirements TANF places on its partic ipants. Th e court e xamined the

Family Care Pro gram in

light of this and f

ound that, while it meets many of the TAN F requirements, it does not meet all of them, particularly that adults be employed or e

ngaged in a job searc

h to be eligible for health insurance cove rage. The court the n addres sed defe

ndants'claim tha

t these re quireme

nts do not a

pply to medica

l progr ams such as the FamilyCare Program they had implemented, pursuant to the sanctions provision of the Illinois Administrative Code (89 I ll. Adm. Code §112.79(f), amended at 28 Ill. Reg . 5655, eff. March 22, 2004)). Examining this section, the court noted that the sanctions provision addresses only w

hat penalty may

be visited upon a noncompliant recipient of assistance but does not remove the TANF requirements of employ ment or job search from health care e ligibility and, as the FamilyCar

e Program contains no such requirements, it must fail. Ultimately, the trial court conc luded that "DHFS' authority does not include waiving the TANF requirements enacted by the state legislature" and "[t]herefor e, DHFS did not have the authority to move the Fa

milyCare Progr

am into Medicaid in the manner contemplated by the Emergency

Rule." Because the court found this fac t to be dispositive, it did not address the other challenges raised by

plaintiffs. Accordingly , the trial court granted plaintiffs' motion, finding tha t they had met the ne cessary elements for a preliminary injunction against the Family Care Program and holding that defendants "are pr eliminarily enjoined from enf orcing the Emergency

Rule or expendin g any public funds relat ed to the Fami lyCare Program created by the Emergenc y Rule." Following the entry

of the injunction, defendants continued to operate the Family Care Program. Plaintiffs moved the trial court to issue an order of complianc e, and a hearing wasNo. 1-08-1061

7

held. At this hearing, defendants told the trial court that they could not provide notice of the injunction

to partic ipants or

service providers, could no t monitor or refund premium pa

yme nts, could not provide plaintiffs with information regarding whe re the monies from premium pay ments wer

e kept an d how much

remaine d, could not identif y or dis-enr oll adult pa

rticipan ts, could not send notice to the participants or providers in the progra m to stop payments and, ultimately

, did not know which of

the million s of adult s enrolle d in medic al assista nce prog rams

were re ceiving

benefit s specif

ically under the Family Care Pro gram. D efenda

nts then f iled their notice of appeal. ANA LYSIS To establish entitlement to preliminary injunctive re lief, a plaintiff must show (1) a clearly a scertainable right in need of protection, (2) that he will suffer irreparable har m without protect ion of tha t right, (3) that t

here is no adequa

te remed y a t law, and (4) that t here is a substantial likelihood of success on the merits of the underly ing action. See Mohanty v. St. John Heart Cli nic, S.C. , 225 Ill. 2d 52, 62 (2006); accord Virendr a S. Bisla , M.D., L

td. v. Parv aiz , 379 Ill. App. 3d 567, 572 (2008). On appeal f rom the grant of a preliminary injunction, a reviewing court is to " 'examine only whether [the plaintiff] demonstrated a prima faci e case tha t there is a fair questi on concernin g the exist ence of the clai med rights.' " Mohanty , 225 Ill. 2d at 62, quot ing People ex rel. Klaere n v. Villag e of L isle , 202 Ill. 2d 164, 177 (2002). Genera lly, an abuse of discretion standard of review applies ( see Mohanty , 225 Ill. 2d at 63), but where, as here, the trial court's determination reg arding the grant of a pr eliminary injunction involves the interpre tation of s tatutory

law, the a

ppropria te standa rd of re view is de novo . See Magee v.No. 1-08-1061

8

Huppin-Fleck , 279 Ill. App. 3d 81, 85 (1996); accord ACME-Wiley Holdings, I nc. v. Buck , 343 Ill. App. 3d 1098, 1103 (2003) (where interlocutory appe al presents question of law, de novo standard is applied). As the parties agre e that this is proper standard, we employ it herein. As a thre shold matte

r, we wis h to addre ss a runni ng comme

nt throug hout defe ndants' brief on appeal. Defendants assert that plaintiffs did not attac k the validity of the Fa

milyCare Program as a whole, "but merely challenged [d]efendants' ability to expand the program to the population with family incomes from 200% to 400% of the FPL" and, thus, the trial cour t's order enjoining the entire program was be yond the scope of

the underlying

lawsuit. We find this to be an incorrect mischaracterization of plaintiffs' consistent position in this matter. From a review of plaintiffs' second amended complaint for injunction, it is clear to us that plaintiffs cha llenged, and continue to challenge, the entire F amilyCare Prog ram as a whole. For example, plaintiffs state the rein tha t they are cha llengin g on con stitutiona

l and statu

tory ground s defend

ants' implementation of the program. More clearly , though, the trial court's order states that plaintiffs "seek to enjoin the Family Care Program," not just a portion of it. We now turn to the primary issue on appe al, namely, did the trial cour t err in granting the preliminary injunction on the g round that the FamilyCar e Program fails to comply with all of the TANF re quireme

nts? It is o

ur view that it did not

. Defend ants b egin th eir cha llenge in th is vei n by assert ing th at the Famil yCare Pro gram's

connec tion to TAN

F requir ements " was at mos t a perip heral iss ue that wa s not deve loped in briefing or oral argume

nt," was "abandoned" by

plaintiffs, and resulted in an "unsustainable" and "misguided" basis for the trial court' s decision. Defendants argue that it should not have eve nNo. 1-08-1061

9

played a r ole in the decision, let alone become the sole basis for the g rant of the injunction, because plaintiffs "merely devoted two sentences to the advancement of" the argument regar ding TANF requirements, because def endants refuted the argument by pointing to the sanctions provision , and bec ause pla intiffs " did not pur sue the is sue in the ir reply brief," so defen

dants thought it had been conceded. Howeve r, plaintiffs discussed the TANF requirements arg ument at leng th befor e the tria l court, a s exhibited by th eir sec ond amend ed compla

int and in their opening trial brief. Regardless, by their very a ssertions here, defendants concede that plaintiffs raised this argument before the trial cour t--even if it may ha

ve only been a

rgued in "two sentences." Contrary

to defendants' intimations, plaintiffs were not required to write a dissertation on the issue in their brief before the trial court, nor we re they r equired to mention the issue for a second time in their reply brief, for that court to address the matter or eve ntually find it to be dispositive. Defendants cite no law, and we find absolutely none, to the effect that plaintiffs' actions constituted an "abandonment" of the issue. Rather, it is clear that plaintiffs adequately

raised the issue at the outset of this cause and arg ued it before the trial court to that court's satisfaction, and defendants' assertions otherwise are wasted words. And, ultimately , we may aff irm the judgment of the trial court on any basis appearing in the record. See White v. DaimerChrysler

Corp. , 368 Ill. App. 3d 278, 282 (2006). Section 5-2 of the Illinois Public Aid Code (Code) dealing w ith medical assistance (Ill inois' ve

rsion of M edicaid

) states: "Classe s of Persons Eligib le. Medic al assista nce unde r this Arti cle [Article V of the Code] shall be available to any of the following classes ofNo. 1-08-1061

10 persons ***:

***

2. Persons otherwise eligible for basic maintenance under Articles II I [Aid to the Aged, Blind or Disable d] and IV [Temporary Assistance for Needy F amilies (TANF)] but who fail to qualify thereunder on the basis of need, and who have insufficient income and re sources to meet the costs of

necess ary medica l care, inclu ding b ut no t lim ited t o the f ollo wing:

*** (b) All persons who would be determined eligible for suc h basic maintenance under Article I V [TANF] by disreg arding the maximum ear

ned income permitt

ed by federa l law." 3 05 IL

CS 5/5-2(2)(b) (West 2006). Admittedly and undisputedly , defendants hung the authority for their actions in implementing and operating the Family

Care Program upon section 5-2(2)(b). A s noted, that section states that medical assistance is to be made available to all those otherwise elig ible for basic maintenance under TA NF, disr egard ing the maximum ear

ned income permitt

ed by federa l law. See

305 I LCS 5/5-2(2)(b) (West 2006). The languag e of section 5-2(2)(b) is plain and unambiguous. See Househol d Bank, F SB v. L ewis , 229 I ll. 2d 173, 1 82 (2008) ; In re Estate of Ellis , 381 Ill. App. 3d 427, 430 ( 2008) (pr

imary goal of statutory construction is to fo llow leg islature 's inten t, which is best exhibited by statute's plain lang uage; when this is clear, courts must give e ffect to it and not depart from it nor read into it limitations or exceptions not expressed therein). Would-beNo. 1-08-1061

11

recipients of medical assistance under this section must be eligible f or basic maintenance under the requ irements of TANF , with the only

exception

being th eir "e arned in

come," which is no t to be considered. Turning , then, to T

ANF, tha t article begins by de scribing

its purpos e: "to a

llow the f amily to become self-sufficient or employ ed as quickly as possible throug h *** the provision of transitio nal assist

ance to f amilies." 305 I LCS 5/4 -0.5 (Wes t 2006). I t then des cribes w

ho is eligible: "§ 4-1. E ligibility require ments. Fi nancial aid in mee

ting bas ic maintenance requirements for a livelihood compatible with health and w ell-being shall be given under this Article to or in behalf of fa milies with dependent children who meet the eli gibility conditi ons of Secti ons 4-1.1 t hrough 4-1.11 ." 305 IL CS 5/4-1 (West 2006). Reviewing the eligibility

conditions of sections 4.1-4.11 of TANF, and disregar ding those that focus on "earned income" a s prescribed in section 5-2(2)(b) of the Code, seve ral conditions that must be complied with to receive assistance under TANF still remain, including registration for and acceptance of employ ment (305 IL CS 5/4-1.8 (West 2006)), participation in educational and vocational traini

ng prog rams (30 5 IL CS 5/4-1.9 ( West 2006) ), and ac ceptanc e of assi gnment t o job search, training and work prog rams (305 IL CS 5/4-1.10 (West 2006)). In addition to these, other noneconomic conditions that need to be met before one is eligible to receive assistance under TA NF are the enforcemen

t of pare ntal child support ob ligation

if such a n obliga tion exists (305 IL CS 5/4-1.7 (West 2006)), and that a would-be recipient has not been convicted two orNo. 1-08-1061

12

more times of public aid fraud (305 ILCS 5/4-1.5a (West 2006)). According their own stipulations, defendants conce de that the FamilyCar e Program does not require its participants to comply with these noneconomic requirements necessary to receive assistance under TANF. As the trial court found, while the FamilyCare

Program meets some of the TANF eligibility

requirements, it does not meet all of them. The Family Care Program, then, is in direc t contra diction to t

he unambi guous la

nguag e of the Co de defe

ndants re ly u

pon to operate it. Essentially, sec tion 5-2(2)(b) extends medical assistance in the name of the FamilyCare

Program to those who would otherwise receive a ssistance under TANF, disregar ding only those TANF r

equirements dealing with earned income. TA NF, however, is further limited pursuant t o the statu te that created it. As we hav e discussed , to receive as sistance un der TANF, section 4 -1 presc

ribes tha t certai n requir ements mus t be met. O f these, the requ irements listed in sections 4-1.7 through 4-1.10, as well as section 4-1.5a, ar e noneconomic. According to section 5-2(2)(b), it is clear that Family Care Program participants must meet these noneconomic TA NF requirements. Yet, as defendants readily admit that the FamilyCare Program does not require this of their participants, an undeniable discrepancy in authority is evident: defenda nts are operating the Family

Care Program under the auspices of TANF pursuant to that statute, but are declaring that certain otherwise ma ndatory TANF

eligibility require

ments may fall by

the wayside. This ca

nnot stand in light of sections 5-2(2)(b) and 4-1 of the Code. Overall, defendants' relianc e on section 5-2(2)(b) for authority to operate the Family

Care Program suffers from severa l flaws, primarily that the lang uage of this statutory

section in no way supports def

endants' operation of their progr am. Nothing in the wording of section 5-2(2)(b)No. 1-08-1061

13

authorizes defendants to ignore the TANF re quirements, save one: "earned income." This is the only TANF el igibility

require ment sec tion 5-2( 2)(b) sp ecifica lly s tates may

be disre garde d in extending assistance to those who would otherwise qualify for such under TANF. Plainly and simply , section

5-2(2)( b), which seeks to

bring me dical as sistance under the guise of Medicai d through TANF, does not allow for the waiver of any other

TANF eligibility r

equirement. Nor does this section, or section 4-1 for that matter, discuss any other aspect of the Family Care Progra m defend ants have heretof ore imple mented, i ncluding the char ging o f premium s to those receiving medi cal assis tance un der Medi caid or T

ANF, or any thing simi lar to a 4 00% of the FPL "cap" as a permissible or appr opriate standard to determine eligibility for medical assistance. Defend ants ag ain asse

rt on appe al, as the

y di d before

the trial court, th at the oth erwise mandatory TAN

F requirements are not required of those receiving medical assistance under the FamilyCare

Program pursuant to 112.79 (f) of Title 89 of the I llinois Administrative Code ("sanctions provision") (89 I ll. Adm. Code §112.79(f), amended at 28 Ill. Reg . 5655, eff. March 22, 2004) . As did the

trial cou rt, we dis agree

with this a

rgumen t. The sanctions provision outlines the sanction or penalties that may be imposed upon particip ants of TA

NF who f ail to mee t TANF' s work an

d employ ment req uiremen ts. See 89 I

ll. Adm. Code §112.79(a), amended at 28 I ll. Reg. 5655, eff. March 22, 2004. I t describes, for example, what actions merit a sanction (subsection (b)), what ty pe of sanction will be imposed (subsection (a)), notice requirements (subsections (c) and (e)), and the ability to rectify a

sanction (subsec tion (h)) . The subs ection r elied upon by

defenda nts here states, in pertine nt part: "(f) A sanction under this Section sh all not affect receipt of Med ical Assis tance."No. 1-08-1061

14 89 Ill. Adm. Code §112.79(f), amended a t 28 Ill. Reg. 5655, eff. Mar ch 22, 2004. While defe

ndants ar e corre ct that sub section ( f) expre ssly prohibits a

sanction to interf ere with medical assistance received, they ignore the fact that this section applies to those already receiving assistance under TAN F. The sanctions provision specifically covers what penalties will be imposed upon recipients of TANF aid who fail to satisfy the TANF requirements outlined in Article IV of the Code, name ly, a reduction in the percentage of benefits re ceived for each violation save any bene fit involving medical assistance. See 89 I ll. Adm. Code §§112.79(a), (f), amended at 28 I ll. Reg. 5655, ef

f. March 22, 2004. Neither the sanc tions prov

ision nor it s subsecti on (f) a

pplies to a

nyone other

than TAN

F partic ipants. That is, it doe s not apply to those attempting to become eligible to receive T ANF, but only to those who alr eady re ceive TANF aid; as the trial court determined, subsection (f) "pr esupposes" that the one to whom the sanction provision applies has already been declared eligible for a nd has been receiving TANF assistance, but has be come a noncomplia nt recip ient. I

t is only then--w hen the T ANF re cipient h as become noncompliant--that the sanctions provision comes into play. I t does not, as defendants argue, somehow r

emove the

TANF re quireme

nts of job s earch a

nd employ

ment from

TANF el igibility or preserve the receipt of medica l assistance for those who otherwise do not meet the initial requirements to receive TANF in the first instance . Were this so, there would be no need for any sort of sanctions provision because there would be no limits upon receiving T ANF assistance. Accordingly , we find that defendants' reliance on subsection (f) of the sanctions provision does not support their cause here. Finally, defe

ndants argue that the preliminary injunction issued by the trial court must beNo. 1-08-1061

15

revers ed beca

use the c ourt did no t balanc e the equ itable fa ctors ra ised in this

cause w hich, in defendants' opinion, "overwhelming ly weig h in favor of denial" of the injunction. Again, we disagree. First an d foremo st, it is cle ar to us th at the tri al court did indee d weigh

the equit able factor s presen

ted in this c ause. I

n fact, t he court went so fa

r as to mak

e note of them in its memorandum opinion and order granting the pr eliminary injunction. As we too set forth e arlier, the trial court commented in the first sentence of the analy sis portion of its decision that, in order to grant plaintiffs' motion for preliminary injunction against defendants, it was required to find that plain tiffs hav e an asc ertaina

ble rig ht in need of prote ction, tha

t this rig ht is being

irrepa rably harmed with no adequate legal re medy, and that there

is a likelihood of success on the merits of plaintiffs' claim. Therefore, the trial c ourt recognized at the outset that a balance of factors was necessary to reach its decision. Moreover, after discussing its decision to grant the injunction, the cour t thoroug hly explained

in a conc luding pa

ragra ph to its ord

er that: "There is a clea rly ascert ainable right in need of p rotection assert

ed in Plaintiff s' clai m, namely

the unaut horized e xpansion of

Medicai d imprope

rly using ta x dollars. T

he harm a lleged is irrepa rable a nd inadeq uate at la w becau se it would be i

mpractic able for

the State to recou p the cost s expended

for the b enefit of the FamilyCar

e Program. There exists a likelihood of success on the merits of Plaintiff's claims with respect to the Family Care Program for the reasons explained above." While the trial court may not have listed in written for m all the potential equitable factors presentNo. 1-08-1061

16

in this cause, it is obvious, from its memorandum opinion and order, that it inherently c onducted a balancing of these factors in arriving at its ultimate decision. See, e.g. , Stacke v. Bates , 138 I ll. 2d 295, 308-09 (1990) (in reaching decision whe ther to grant stay

pending appeal, trial court "of necessi ty" was eng aged in

balanci ng proc ess as to r

ights of parties a nd conside

ration of equitabl e factors). Second, we note again that we as a r eviewing court are, on appea l from the grant of a preliminary injunction, to examine only whether plaintiffs demonstrated a prima facie case that there is a fair que stion conc erning

the existen

ce of the right th ey

claim is be ing irr

eparab le harmed. See Mohanty

, 225 Ill. 2d at 62; accord Village of Li sle , 202 Ill. 2d at 177. Based on the record before us, we are

convinced that plaintiffs have done so here. Def endants have attempted to move a g

roup of pe ople for

merly covere d under th e Ill inois SCHI P progr am (those with incomes u

nder 185 % of the F PL) a

nd a gr oup of pe ople neve

r cover ed under any Illinois assistance program (those with incomes up to 400% of the F PL) into Medicaid via the auspices of TANF. Yet, receipt of Medicaid, a nd in particular assistance received throug h TANF, has always bee

n intended to be temporary and transitional, i.e. , to aid families in becoming selfsufficient. See 305 IL CS 5/5-1, 4-0.5 (West 2006). We find nothing temporary about the FamilyCare

Program, which currently seeks to extend Medicaid coverage to people w ith incomes up to $83,000 a year . If the situation were to continue a s defendants hope, there is no telling what percentage this will reach, a s defendants would be able to continue to ignore the limiting TANF eligibility r

equirements and extend coverage via their program to ultimately

anyone a t any level of income. Su

ch a dec ision is for

the leg islature , who for

ms statutor

y la ws like Me dicaidNo. 1-08-1061

17

and TANF and sets eligibility requirements therefor, not for the executive defe ndants. Moreover, defenda nts admitte d to the tri al court that, eve n at this ea

rly point in the

creatio n of their Family Care Pro gram, t

hey alread y c annot ide

ntify progra m partici pants, pr ovide the m with notice, or monitor payments; they do not even know (or at least have refused to re veal) where the premiums they have c ollected are kept and how much remains. This, in addition to the fact that both JCAR and the Illinois Secretary of State have already

twice suspended and prohibited defendants' Emerge

ncy and Perma

nent Rules creating the Family Care Program, raises severe concerns--ones we find are mor e than sufficient to demonstrate, on a prima facie basis, that plaintiffs have raised a fair question concer ning their rights as state taxpay ers and the existence of an irreparable harm to their rig hts promulgated by

defendants' continued operation of the Family Care Pro gram. CONCLUSIO N Ultimately, we hold, in acc ordance with the trial court, that, to receive medica l assistance under section 5-2(2)(b) (Medicaid), a would-be recipient must qualify under the limited eligibil ity r

equirem ents of TA

NF. As th e Family

Care Pro gram a

dmittedly does not li

mit itself i

n this regard, defendants' ope ration of it is not proper under the statutory law upon which it relies. Finding this to be dispositive, we need not address any further arguments on appeal. See White , 368 Ill. App. 3d at 282. We wish to note here that defendants state in their appellate brief that they issued a "Perem ptory Rule" on April 21, 2 008, which incorporates the TANF re quireme

nts at issue

into the FamilyCare

Program "if and to the extent required by the trial court's order." They furtherNo. 1-08-1061

18

state that this "remedies the deficiency found by the trial cour

t." However, this is incorrect. As this "Peremptory Rule" was "issued" after the trial cour t's decision in this cause, it was never presented to that court. As such, it, and any discussion regarding it, is waived for our r eview. See, e.g. , In re

O.R. , 328 Ill. App. 3d 955, 959 (2002). Accordingly , for all the foregoing re asons, we affirm the judgment of the trial court granting plaintiffs' motion for preliminary injunction. Affirmed. O'MARA FROSSARD and TOOMIN , JJ., concur.No. 1-08-1061

19 __________________________________________________________________________________________________________________________ REPORTER OF DECISIONS - ILLINOIS APPELLATE CO URT

(Front Sheet to

be Attached to Each Case)

_________________________________________________________________________________________________________________________ Please use

the follow

ing form Richard P. Ca ro, a State

of Illinois

Taxpa yer on B ehalf of

and for the

Benefi t of the St ate of Illinois, Plaintiff-Appellee (Ronald Gidwitz and Gregory Baise, Plaintiff s-Interv enors-Appe

llees),

v. Honorable Rod Blagojevich, Governor of the State of Illinois, The Illinois Department of Healthcare and Family Services, Barry S. Maram

, Director of IDHFS, Defenda nts-Appellants (The De partme nt of Public He alth, Dam on Arnold, Di

rector, a nd Daniel W . Hynes , Comptroll er, Defendants; Grego ry Jac away et al ., Individually and on Behalf of All Similarly Situated People, Defendants-Intervenors; The State of Illinois, Intervenor ).

_____________________________________________________________________________________________ No. 1-08-1061 Docket No. Appellate Court of Illinois COURT First District, FIFTH Division Opinion Filed September 26, 2008 (Give month, day and year)

__________________________________________________________________________________________ PRESIDING JUSTICE JAMES FITZGERALD SMITH DELIVERED THE OPINION OF THE COURT: JUSTICES O'MARA FROSSARD and TOOMIN, JJ. concur. Lower Court and Trial Judge(s) in form indicated in margin: APPEAL from the Circuit Court of Cook Appeal from the Circuit Court of Cook County. County; the Hon________ Judge Presiding. The Hon. JAMES R. EPSTEIN, Judge pres iding.

__________________________________________________________________________________________________________________________ Indicate i f attorne

y repre sents A

PPELLANT S or APPELL EES and include

attorney 's of c ounsel. Indic ate the w ord r FOR APPELLANTS NONE if not represe

nted. John Do e, of Chicago For APPELLE

ES, : DEFENDA NTS-A PPELL ANTS: BARNES & T

HORNBURG L

LP, Chicago, IL

Larry D. Blust, Marc S. Sil

ver and Katar

zyna K . Dygas PLAI NTIFF -APPELLEE: RI

CHARD P. CARO (

pro se ), Riverside IL Richard Caro

________________

_________________ __ Smith and S mith of Chicago , PLAINTIF FS-INTERVENOR S-APPELLEES: UNGARETTI & HARRIS LLP, Chi cago, IL F. Thomas Hecht, Claud ette P. Mill er and F loy d D. Pe rkins

_________________

_________________

_________________

_________________

_________________

_____________ ( Joseph Brown, of counsel ) INTERVENOR: ATTORNEY GENERAL , STATE OF I

LLI NOIS, Chicago, IL L

isa Madigan , Attorney General, Rachel Hoover , Assistant A

ttorney G eneral, and Michael

A. Scodro , Solicitor G

eneral AMICUS NATIONA

L FEDERATI

ON OF INDEPENDENT BUSI NESS, SMALL BUSI

NESS LEGAL

CENTER: HOOGENDOORN & TAL BOT LLP, Chicago, IL

Bruce J. Van Heukelem and Adam C. Zylstra Add atto rney s for third-pa rty .