Caro v. Blagojevich

FIFTH DIVISION
September 26, 2008

No. 1-08-1061

RICHARD P. CARO, a State of Illinois Taxpayer on Behalf of ) Appeal from the
and for the Benefit of the State of Illinois, ) Circuit Court of
) Cook County.
Plaintiff-Appellee )
)
(Ronald Gidwitz and Gregory Baise, )
)
Plaintiffs-Intervenors-Appellees), )
)
v. ) No. 07 CH 34353
)
HONORABLE ROD BLAGOJEVICH, Governor of the State of )
Illinois, THE ILLINOIS DEPARTMENT OF HEALTHCARE )
AND FAMILY SERVICES, BARRY S. MARAM, Director of )
IDHFS, )
)
Defendants-Appellants )
)
(The Department of Public Health, Damon Arnold, Director, and )
Daniel W. Hynes, Comptroller, )
)
Defendants; )
)
Gregory Jacaway et al., Individually and on Behalf of All Similarly )
Situated People, )
)
Defendants-Intervenors; )
)
The State of Illinois, ) The Honorable
) James R. Epstein,
Intervenor). ) Judge Presiding.
No. 1-08-1061

PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of the court:

Plaintiff-appellee Richard P. Caro, a State of Illinois taxpayer, joined by plaintiffs-

intervenors-appellees Ronald Gidwitz and Gregory Baise (collectively, plaintiffs), moved the

trial court for a preliminary injunction against defendants-appellants Governor of Illinois Rod

Blagojevich, the Illinois Department of Healthcare and Family Services, and Director Barry S.

Maram (defendants or as named), as well as defendants the Illinois Department of Public Health,

Director Damon Arnold, and Comptroller Daniel W. Hynes,1 to prohibit them from expanding,

funding and operating a healthcare program as violative of statutory law and the Illinois

Constitution. The trial court granted plaintiffs' request and imposed the injunction. In this

interlocutory appeal, defendants contend that the trial court erred in its decision to grant the

injunction and failed to balance equitable factors which support its denial. Defendants ask that

we overturn the trial court's issuance of the injunction, uphold the validity of their healthcare

program, and grant any other proper relief.

We note for the record that plaintiff Caro filed a pro se appellee brief in this matter in

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

Gregory Jacaway filed an appearance on his behalf and on that of all others similarly situated as

defendants-intervenors, but did not file a brief in this cause. Also, the State of Illinois, via the

office of the Attorney General, filed a brief in its capacity as an intervenor, and the National

Federation of Independent Business filed an amicus brief.

For the following reasons, we affirm.

1
These defendants have not participated in the instant appeal.

2
No. 1-08-1061

BACKGROUND

The principal facts involved in this cause are not in dispute.

In 1997, the federal government enacted the State Children's Health Insurance Program

(SCHIP), which sought to provide health insurance to children whose families could not afford

private insurance but who likewise did not qualify for Medicaid. Illinois participated in this

program by enacting its own version pursuant to a statute entitled the Children's Health Insurance

Program Act (CHIPA), to be run by defendant the Department of Healthcare and Family Services

(DHFS). In return, Illinois received a 65% federal match in funds expended for CHIPA

coverage, compared to only a 50% federal match in funds expended for Medicaid coverage.

In 2001, the federal government permitted Illinois to submit waivers to obtain federal

funds and extend health insurance coverage to the parents/caretakers of those children enrolled in

CHIPA. Illinois did so, the federal government approved it, and the FamilyCare Program was

created pursuant to the Illinois 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 family income exceeded the

maximum allowed for eligibility under Medicaid but could not afford private health insurance.

Initially, Illinois set the eligibility requirement to receive coverage under the FamilyCare

Program at 49% of the federal poverty limit (FPL); that is, those adults whose income was at

49% of the FPL were eligible for health insurance under the program. Through the years, this

level was increased, reaching 185% of the FPL in January 2006.

By 2007, the scope of the federal SCHIP program became uncertain as the United States

3
No. 1-08-1061

Congress and the President could not agree on funding or the breadth of coverage, and SCHIP

and its accompanying state waivers were set to expire (pending extension attempts) in December

2007. This jeopardized the 65% federal funding match for state programs such as Illinois'

CHIPA covering children and the FamilyCare Program covering adults. In an effort to preserve

at least the 50% federal match Illinois received under Medicaid, DHFS declared on November 7,

2007, that an emergency existed warranting the promulgation of an "Emergency Rule" pursuant

to the Public Aid Code, which governs Medicaid in Illinois. 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 the FPL (i.e., an income of $83,000 per year for a family of four), who would pay

varying premiums for coverage received depending on their incomes. For this expansion to

Medicaid and increase in percentage, DHFS relied on section 5-2(2)(b) of the Illinois Public Aid

Code (305 ILCS 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 "Temporary

Assistance for Needy Families" (TANF) article of the Public Aid Code (305 ILCS 5/4-0.5 et seq.

(West 2006)) by disregarding the maximum earned income permitted by federal law. Defendant

Governor Blagojevich approved the expansion, and DHFS submitted the Emergency Rule and

supporting documentation, along with a "Permanent Rule" to the same effect, to the Joint

Committee on Administrative Rules (JCAR) in accordance with emergency rule-making

procedures under the Illinois Administrative Procedure Act (5 ILCS 100/1-1 et seq. (West

2006)).

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No. 1-08-1061

After review, JCAR objected to and suspended DHFS' Emergency Rule, finding that no

emergency situation existed warranting adoption of the proposed rule and that the rule was not in

the public's interest; JCAR effectively suspended and invalidated the Emergency Rule and the

FamilyCare Program it created. Accordingly, the Illinois Secretary of State issued a filing to this

effect, prohibiting implementation of the Emergency Rule. DHFS, however, enacted the

Emergency Rule and began enrolling adults with incomes up to 400% of the FPL 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 constitutional authority to raise revenue, the lack of authority to expand the FPL

eligibility percentage to 400%, the lack of an appropriation for the expansion, and the suspension

of the Emergency Rule by JCAR. Plaintiffs sought to enjoin defendants from further

implementing the FamilyCare Program.

While plaintiffs' cause was pending, DHFS' Permanent Rule came before JCAR. Again,

JCAR found it to be contrary to public interest and prohibited defendants from implementing the

FamilyCare Program, and again, the Illinois Secretary of State issued a filing to this effect.

However, defendants continued to enroll adults with incomes up to 400% of the FPL into

Medicaid.

In April 2008, the trial court held a hearing on plaintiffs' motion for preliminary

injunction. In its memorandum opinion and order, the court focused principally on defendants'

reliance on section 5-2(2)(b) of the Public Aid Code as the authority for their actions in

expanding the FamilyCare Program under Medicaid. The court noted that, as this involves

5
No. 1-08-1061

TANF, the FamilyCare Program would need to meet the eligibility requirements TANF places on

its participants. The court examined the FamilyCare Program in light of this and found that,

while it meets many of the TANF requirements, it does not meet all of them, particularly that

adults be employed or engaged in a job search to be eligible for health insurance coverage. The

court then addressed defendants' claim that these requirements do not apply to medical programs

such as the FamilyCare Program they had implemented, pursuant to the sanctions provision of

the Illinois Administrative Code (89 Ill. 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 what penalty may be visited upon a noncompliant recipient of assistance but does

not remove the TANF requirements of employment or job search from health care eligibility and,

as the FamilyCare Program contains no such requirements, it must fail.

Ultimately, the trial court concluded that "DHFS' authority does not include waiving the

TANF requirements enacted by the state legislature" and "[t]herefore, DHFS did not have the

authority to move the FamilyCare Program into Medicaid in the manner contemplated by the

Emergency Rule." Because the court found this fact to be dispositive, it did not address the other

challenges raised by plaintiffs. Accordingly, the trial court granted plaintiffs' motion, finding that

they had met the necessary elements for a preliminary injunction against the FamilyCare Program

and holding that defendants "are preliminarily enjoined from enforcing the Emergency Rule or

expending any public funds related to the FamilyCare Program created by the Emergency Rule."

Following the entry of the injunction, defendants continued to operate the FamilyCare

Program. Plaintiffs moved the trial court to issue an order of compliance, and a hearing was

6
No. 1-08-1061

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

injunction to participants or service providers, could not monitor or refund premium payments,

could not provide plaintiffs with information regarding where the monies from premium

payments were kept and how much remained, could not identify or dis-enroll adult participants,

could not send notice to the participants or providers in the program to stop payments and,

ultimately, did not know which of the millions of adults enrolled in medical assistance programs

were receiving benefits specifically under the FamilyCare Program. Defendants then filed their

notice of appeal.

ANALYSIS

To establish entitlement to preliminary injunctive relief, a plaintiff must show (1) a

clearly ascertainable right in need of protection, (2) that he will suffer irreparable harm without

protection of that right, (3) that there is no adequate remedy at law, and (4) that there is a

substantial likelihood of success on the merits of the underlying action. See Mohanty v. St. John

Heart Clinic, S.C., 225 Ill. 2d 52, 62 (2006); accord Virendra S. Bisla, M.D., Ltd. v. Parvaiz, 379

Ill. App. 3d 567, 572 (2008). On appeal from the grant of a preliminary injunction, a reviewing

court is to " 'examine only whether [the plaintiff] demonstrated a prima facie case that there is a

fair question concerning the existence of the claimed rights.' " Mohanty, 225 Ill. 2d at 62,

quoting People ex rel. Klaeren v. Village of Lisle, 202 Ill. 2d 164, 177 (2002). Generally, an

abuse of discretion standard of review applies (see Mohanty, 225 Ill. 2d at 63), but where, as

here, the trial court's determination regarding the grant of a preliminary injunction involves the

interpretation of statutory law, the appropriate standard of review is de novo. See Magee v.

7
No. 1-08-1061

Huppin-Fleck, 279 Ill. App. 3d 81, 85 (1996); accord ACME-Wiley Holdings, Inc. v. Buck, 343

Ill. App. 3d 1098, 1103 (2003) (where interlocutory appeal presents question of law, de novo

standard is applied). As the parties agree that this is proper standard, we employ it herein.

As a threshold matter, we wish to address a running comment throughout defendants'

brief on appeal. Defendants assert that plaintiffs did not attack the validity of the FamilyCare

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 court's order

enjoining the entire program was beyond 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 challenged,

and continue to challenge, the entire FamilyCare Program as a whole. For example, plaintiffs

state therein that they are challenging on constitutional and statutory grounds defendants'

implementation of the program. More clearly, though, the trial court's order states that plaintiffs

"seek to enjoin the FamilyCare Program," not just a portion of it.

We now turn to the primary issue on appeal, namely, did the trial court err in granting the

preliminary injunction on the ground that the FamilyCare Program fails to comply with all of the

TANF requirements? It is our view that it did not.

Defendants begin their challenge in this vein by asserting that the FamilyCare Program's

connection to TANF requirements "was at most a peripheral issue that was not developed in

briefing or oral argument," 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 even

8
No. 1-08-1061

played a role in the decision, let alone become the sole basis for the grant of the injunction,

because plaintiffs "merely devoted two sentences to the advancement of" the argument regarding

TANF requirements, because defendants refuted the argument by pointing to the sanctions

provision, and because plaintiffs "did not pursue the issue in their reply brief," so defendants

thought it had been conceded. However, plaintiffs discussed the TANF requirements argument

at length before the trial court, as exhibited by their second amended complaint and in their

opening trial brief. Regardless, by their very assertions here, defendants concede that plaintiffs

raised this argument before the trial court--even if it may have only been argued 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 were they required to mention the

issue for a second time in their reply brief, for that court to address the matter or eventually 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 argued it before the trial court to that

court's satisfaction, and defendants' assertions otherwise are wasted words. And, ultimately, we

may affirm 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 with medical assistance

(Illinois' version of Medicaid) states:

"Classes of Persons Eligible. Medical assistance under this Article

[Article V of the Code] shall be available to any of the following classes of

9
No. 1-08-1061

persons ***:

***

2. Persons otherwise eligible for basic maintenance under Articles

III [Aid to the Aged, Blind or Disabled] and IV [Temporary Assistance for

Needy Families (TANF)] but who fail to qualify thereunder on the basis of

need, and who have insufficient income and resources to meet the costs of

necessary medical care, including but not limited to the following:

***

(b) All persons who would be determined eligible for such

basic maintenance under Article IV [TANF] by disregarding the

maximum earned income permitted by federal law." 305 ILCS

5/5-2(2)(b) (West 2006).

Admittedly and undisputedly, defendants hung the authority for their actions in implementing

and operating the FamilyCare Program upon section 5-2(2)(b). As noted, that section states that

medical assistance is to be made available to all those otherwise eligible for basic maintenance

under TANF, disregarding the maximum earned income permitted by federal law. See 305 ILCS

5/5-2(2)(b) (West 2006). The language of section 5-2(2)(b) is plain and unambiguous. See

Household Bank, FSB v. Lewis, 229 Ill. 2d 173, 182 (2008); In re Estate of Ellis, 381 Ill. App. 3d

427, 430 (2008) (primary goal of statutory construction is to follow legislature's intent, which is

best exhibited by statute's plain language; when this is clear, courts must give effect to it and not

depart from it nor read into it limitations or exceptions not expressed therein). Would-be

10
No. 1-08-1061

recipients of medical assistance under this section must be eligible for basic maintenance under

the requirements of TANF, with the only exception being their "earned income," which is not to

be considered.

Turning, then, to TANF, that article begins by describing its purpose: "to allow the family

to become self-sufficient or employed as quickly as possible through *** the provision of

transitional assistance to families." 305 ILCS 5/4-0.5 (West 2006). It then describes who is

eligible:

"§ 4-1. Eligibility requirements. Financial aid in meeting basic

maintenance requirements for a livelihood compatible with health and well-being

shall be given under this Article to or in behalf of families with dependent

children who meet the eligibility conditions of Sections 4-1.1 through 4-1.11."

305 ILCS 5/4-1 (West 2006).

Reviewing the eligibility conditions of sections 4.1-4.11 of TANF, and disregarding those that

focus on "earned income" as prescribed in section 5-2(2)(b) of the Code, several conditions that

must be complied with to receive assistance under TANF still remain, including registration for

and acceptance of employment (305 ILCS 5/4-1.8 (West 2006)), participation in educational and

vocational training programs (305 ILCS 5/4-1.9 (West 2006)), and acceptance of assignment to

job search, training and work programs (305 ILCS 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 TANF are the enforcement of parental child support obligation if such an obligation exists

(305 ILCS 5/4-1.7 (West 2006)), and that a would-be recipient has not been convicted two or

11
No. 1-08-1061

more times of public aid fraud (305 ILCS 5/4-1.5a (West 2006)).

According their own stipulations, defendants concede that the FamilyCare 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 FamilyCare Program, then,

is in direct contradiction to the unambiguous language of the Code defendants rely upon to

operate it. Essentially, section 5-2(2)(b) extends medical assistance in the name of the

FamilyCare Program to those who would otherwise receive assistance under TANF, disregarding

only those TANF requirements dealing with earned income. TANF, however, is further limited

pursuant to the statute that created it. As we have discussed, to receive assistance under TANF,

section 4-1 prescribes that certain requirements must be met. Of these, the requirements listed in

sections 4-1.7 through 4-1.10, as well as section 4-1.5a, are noneconomic. According to section

5-2(2)(b), it is clear that FamilyCare Program participants must meet these noneconomic TANF

requirements. Yet, as defendants readily admit that the FamilyCare Program does not require

this of their participants, an undeniable discrepancy in authority is evident: defendants are

operating the FamilyCare Program under the auspices of TANF pursuant to that statute, but are

declaring that certain otherwise mandatory TANF eligibility requirements may fall by the

wayside. This cannot stand in light of sections 5-2(2)(b) and 4-1 of the Code.

Overall, defendants' reliance on section 5-2(2)(b) for authority to operate the FamilyCare

Program suffers from several flaws, primarily that the language of this statutory section in no

way supports defendants' operation of their program. Nothing in the wording of section 5-2(2)(b)

12
No. 1-08-1061

authorizes defendants to ignore the TANF requirements, save one: "earned income." This is the

only TANF eligibility requirement section 5-2(2)(b) specifically states may be disregarded 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 medical assistance under the guise of Medicaid

through TANF, does not allow for the waiver of any other TANF eligibility requirement. Nor

does this section, or section 4-1 for that matter, discuss any other aspect of the FamilyCare

Program defendants have heretofore implemented, including the charging of premiums to those

receiving medical assistance under Medicaid or TANF, or anything similar to a 400% of the FPL

"cap" as a permissible or appropriate standard to determine eligibility for medical assistance.

Defendants again assert on appeal, as they did before the trial court, that the otherwise

mandatory TANF requirements are not required of those receiving medical assistance under the

FamilyCare Program pursuant to 112.79 (f) of Title 89 of the Illinois Administrative Code

("sanctions provision") (89 Ill. Adm. Code §112.79(f), amended at 28 Ill. Reg. 5655, eff. March

22, 2004). As did the trial court, we disagree with this argument.

The sanctions provision outlines the sanction or penalties that may be imposed upon

participants of TANF who fail to meet TANF's work and employment requirements. See 89 Ill.

Adm. Code §112.79(a), amended at 28 Ill. Reg. 5655, eff. March 22, 2004. It describes, for

example, what actions merit a sanction (subsection (b)), what type of sanction will be imposed

(subsection (a)), notice requirements (subsections (c) and (e)), and the ability to rectify a sanction

(subsection (h)). The subsection relied upon by defendants here states, in pertinent part:

"(f) A sanction under this Section shall not affect receipt of Medical Assistance."

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No. 1-08-1061

89 Ill. Adm. Code §112.79(f), amended at 28 Ill. Reg. 5655, eff. March 22, 2004.

While defendants are correct that subsection (f) expressly prohibits a sanction to interfere with

medical assistance received, they ignore the fact that this section applies to those already

receiving assistance under TANF. 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, namely, a reduction in the percentage of benefits received for each

violation save any benefit involving medical assistance. See 89 Ill. Adm. Code §§112.79(a), (f),

amended at 28 Ill. Reg. 5655, eff. March 22, 2004. Neither the sanctions provision nor its

subsection (f) applies to anyone other than TANF participants. That is, it does not apply to those

attempting to become eligible to receive TANF, but only to those who already receive TANF aid;

as the trial court determined, subsection (f) "presupposes" that the one to whom the sanction

provision applies has already been declared eligible for and has been receiving TANF assistance,

but has become a noncompliant recipient. It is only then--when the TANF recipient has become

noncompliant--that the sanctions provision comes into play. It does not, as defendants argue,

somehow remove the TANF requirements of job search and employment from TANF eligibility

or preserve the receipt of medical 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 TANF assistance.

Accordingly, we find that defendants' reliance on subsection (f) of the sanctions provision does

not support their cause here.

Finally, defendants argue that the preliminary injunction issued by the trial court must be

14
No. 1-08-1061

reversed because the court did not balance the equitable factors raised in this cause which, in

defendants' opinion, "overwhelmingly weigh in favor of denial" of the injunction. Again, we

disagree.

First and foremost, it is clear to us that the trial court did indeed weigh the equitable

factors presented in this cause. In fact, the court went so far as to make note of them in its

memorandum opinion and order granting the preliminary injunction. As we too set forth earlier,

the trial court commented in the first sentence of the analysis portion of its decision that, in order

to grant plaintiffs' motion for preliminary injunction against defendants, it was required to find

that plaintiffs have an ascertainable right in need of protection, that this right is being irreparably

harmed with no adequate legal remedy, and that there is a likelihood of success on the merits of

plaintiffs' claim. Therefore, the trial court 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 court thoroughly explained in a concluding paragraph to its order that:

"There is a clearly ascertainable right in need of protection asserted in

Plaintiffs' claim, namely the unauthorized expansion of Medicaid improperly

using tax dollars. The harm alleged is irreparable and inadequate at law because it

would be impracticable for the State to recoup the costs expended for the benefit

of the FamilyCare Program. There exists a likelihood of success on the merits of

Plaintiff's claims with respect to the FamilyCare Program for the reasons

explained above."

While the trial court may not have listed in written form all the potential equitable factors present

15
No. 1-08-1061

in this cause, it is obvious, from its memorandum opinion and order, that it inherently conducted

a balancing of these factors in arriving at its ultimate decision. See, e.g., Stacke v. Bates, 138 Ill.

2d 295, 308-09 (1990) (in reaching decision whether to grant stay pending appeal, trial court "of

necessity" was engaged in balancing process as to rights of parties and consideration of equitable

factors).

Second, we note again that we as a reviewing court are, on appeal from the grant of a

preliminary injunction, to examine only whether plaintiffs demonstrated a prima facie case that

there is a fair question concerning the existence of the right they claim is being irreparable

harmed. See Mohanty, 225 Ill. 2d at 62; accord Village of Lisle, 202 Ill. 2d at 177. Based on the

record before us, we are convinced that plaintiffs have done so here. Defendants have attempted

to move a group of people formerly covered under the Illinois SCHIP program (those with

incomes under 185% of the FPL) and a group of people never covered under any Illinois

assistance program (those with incomes up to 400% of the FPL) into Medicaid via the auspices

of TANF. Yet, receipt of Medicaid, and in particular assistance received through TANF, has

always been intended to be temporary and transitional, i.e., to aid families in becoming self-

sufficient. See 305 ILCS 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 with incomes

up to $83,000 a year. If the situation were to continue as defendants hope, there is no telling

what percentage this will reach, as defendants would be able to continue to ignore the limiting

TANF eligibility requirements and extend coverage via their program to ultimately anyone at any

level of income. Such a decision is for the legislature, who forms statutory laws like Medicaid

16
No. 1-08-1061

and TANF and sets eligibility requirements therefor, not for the executive defendants. Moreover,

defendants admitted to the trial court that, even at this early point in the creation of their

FamilyCare Program, they already cannot identify program participants, provide them with

notice, or monitor payments; they do not even know (or at least have refused to reveal) where the

premiums they have collected 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' Emergency and Permanent Rules creating the FamilyCare Program, raises severe

concerns--ones we find are more than sufficient to demonstrate, on a prima facie basis, that

plaintiffs have raised a fair question concerning their rights as state taxpayers and the existence

of an irreparable harm to their rights promulgated by defendants' continued operation of the

FamilyCare Program.

CONCLUSION

Ultimately, we hold, in accordance with the trial court, that, to receive medical assistance

under section 5-2(2)(b) (Medicaid), a would-be recipient must qualify under the limited

eligibility requirements of TANF. As the FamilyCare Program admittedly does not limit itself in

this regard, defendants' operation 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

"Peremptory Rule" on April 21, 2008, which incorporates the TANF requirements at issue into

the FamilyCare Program "if and to the extent required by the trial court's order." They further

17
No. 1-08-1061

state that this "remedies the deficiency found by the trial court." However, this is incorrect. As

this "Peremptory Rule" was "issued" after the trial court's decision in this cause, it was never

presented to that court. As such, it, and any discussion regarding it, is waived for our review.

See, e.g., In re O.R., 328 Ill. App. 3d 955, 959 (2002).

Accordingly, for all the foregoing reasons, we affirm the judgment of the trial court

granting plaintiffs' motion for preliminary injunction.

Affirmed.

O'MARA FROSSARD and TOOMIN, JJ., concur.

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 No. 1-08-1061
__________________________________________________________________________________________________________________________
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be Attached to Each Case)
_________________________________________________________________________________________________________________________
Please use the following
form Richard P. Caro, a State of Illinois Taxpayer on Behalf of and for the Benefit of the State of Illinois,

Plaintiff-Appellee

(Ronald Gidwitz and Gregory Baise,

Plaintiffs-Intervenors-Appellees),

v.

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

Defendants-Appellants

(The Department of Public Health, Damon Arnold, Director, and Daniel W. Hynes, Comptroller,

Defendants;

Gregory Jacaway 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 presiding.
__________________________________________________________________________________________________________________________
Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word r FOR
APPELLANTS NONE if not represented.
John Doe, of Chicago
For APPELLEES, : DEFENDANTS-APPELLANTS: BARNES & THORNBURG LLP, Chicago, IL Larry D. Blust, Marc S. Silver and Katarzyna K. Dygas

PLAINTIFF-APPELLEE: RICHARD P. CARO (pro se), Riverside IL Richard Caro
_________________________________ __
Smith and Smith of
Chicago, PLAINTIFFS-INTERVENORS-APPELLEES: UNGARETTI & HARRIS LLP, Chicago, IL F. Thomas Hecht, Claudette
P. Miller and Floyd D. Perkins
__________________________________________________________________________________________________
(Joseph Brown, of counsel) INTERVENOR: ATTORNEY GENERAL, STATE OF ILLINOIS, Chicago, IL Lisa Madigan, Attorney General, Rachel
Hoover, Assistant Attorney General, and Michael A. Scodro, Solicitor General

AMICUS NATIONAL FEDERATION OF INDEPENDENT BUSINESS, SMALL BUSINESS LEGAL CENTER:
HOOGENDOORN & TALBOT LLP, Chicago, IL Bruce J. Van Heukelem and Adam C. Zylstra
Add attorneys for third-party.

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