dissenting:
I dissent. The majority, by its interpretation of the Illinois Public Aid Code, and in ruling upon the constitutionality of the “no supplementation” policy of the Illinois Department of Public Aid, misapprehends the functioning of the Department and contravenes the true purpose of public aid.
The purpose of public welfare is to aid those individuals truly unable to maintain a decent standard of living. (Ill. Rev. Stat. 1975, ch. 23, par. 1— 1.) A person who is infirm but who has a source of ready financial support is not in need of public assistance merely because he is infirm. Section 3— 1.2 of the Public Aid Code, provides in pertinent part as follows:
“Income available to the person, when added to contributions in money, substances, or services from other sources, including contributions from legally responsible relatives, must be insufficient to meet the person’s basic maintenance needs as defined by standards established by the Illinois Department.” (Ill. Rev. Stat. 1975, ch. 23, par. 3 — 1.2.)
Although the family of a disabled person may not be legally obligated to contribute to his financial support, where the family is in fact supporting the disabled person, he is no longer in need of public assistance. This is true even where the individual would otherwise be eligible to receive public aid.
The plaintiff’s family has for many years expended the sums necessary to maintain plaintiff in a private institution of their choice. Now, plaintiff’s family asserts that it is entitled to public reimbursement in order to keep plaintiff in that private facility. The reasoning behind this assertion is that if plaintiff were to be institutionalized in an authorized State facility, the State would expend a greater sum on his care and maintenance than would be required to supplement the family’s contribution to their chosen private facility. Thus, by keeping plaintiff in a private nonauthorized facility, the State will actually save money. By analogy, if one chooses to send his child to a private school, the State should be required to reimburse that person, at least to the extent of the difference between the amount he is able to pay, or the amount he chooses to pay, and the total cost of tuition. Since that difference will probably be a lesser sum than would be allocated to the child were he to attend a public school, the parent will save the State money by sending his child to a private school and receiving reimbursement from the State. This analogy should illustrate the fallacy of the plaintiff’s argument.
Firstly, if plaintiff were never placed in a State institution, the State would not expend any funds for his care and maintenance. That is, the State does not have a check automatically allocated to plaintiff for him to spend as he chooses simply because plaintiff is disabled. Secondly, the State’s monthly public aid bill will not be reduced because plaintiff, and others similarly situated, are not placed in State authorized facilities. Those facilities will continue to look toward the State to pay a share of the cost of maintenance. Their buildings will still have to be heated, lighted, cleaned, and generally maintained even if plaintiff is not placed therein. These authorized facilities are able to accept the State’s rates as a total payment for quality patient care because the State can fill their beds with patients who are public aid recipients. Thus, if many patients are removed from the authorized facilities, and the State is required to reimburse private institutions for the more expensive care of those patients, the actual per patient cost for those patients remaining in authorized facilities may increase.
In affirming the ruling of the trial court in the instant case, the majority has determined that disabled persons whose families are willing to contribute to their support are entitled to public funds in order to supplement what may be a superior standard of care in a private nonauthorized facility of their choice.
The majority has sustained plaintiff’s arguments that (1) the Department of Public Aid’s “no supplementation” regulation was not authorized by statute, and (2) the regulation violates plaintiff’s right to equal protection under the law. I am compelled to disagree.
The essential issue is whether or not the Department’s regulation is reasonable, that is, is the regulation reasonably related to a valid purpose. In Johnsons Professional Nursing Home v. Weinberger (5th Cir. 1974), 490 F.2d 841, 844, the United States Court of Appeals for the Fifth Circuit quoted the Supreme Court in part as follows:
“Where the empowering provision of a statute states simply that the agency may ‘make * * * such rules and regulations as may be necessary to carry out the provisions of this Act,’ we have held that the validity of a regulation promulgated thereunder will be sustained so long as it is ‘reasonably related to the purposes of the enabling legislation.’ ”
The court of appeals followed the “reasonably related” standard and stated further that deference should be given to “an administrator’s interpretation of the statutory scheme he carries out [and], those who attack that interpretation necessarily shoulder a heavy burden.” (Johnsons Professional Nursing Home v. Weinberger (5th Cir. 1974), 490 F.2d 841, 844.) The Johnson court held that a regulation promulgated by the Department of Health, Education and Welfare was within the authority of the Department’s Secretary, and was consistent with the legislative formula for the administration of programs with efficiency, economy, and quality of care. The regulation required those States allowing supplementation payments to patient care facilities from relatives not legally obligated to contribute to the Medicaid recipient’s support to submit to the agency plans to gradually eliminate such supplementation. The court refused to “substitute our economic judgment for that of HEW.” It refused to “second-guess HEW in an area of its expertise * * (Johnsons Professional Nursing Home v. Weinberger (5th Cir. 1974), 490 F.2d 841, 844-45.) To further evidence the reasonableness of the Department’s policy to eliminate supplementation from programs receiving Federal funds, the Johnson court examined the legislative objectives supportive of this policy authorized by the Department. The court found that:
“Although it did not by statute proscribe supplementation Congress recognized the undesirability of the practice:
There are wide variations among the States in the manner of financing the cost of nursing home care provided to the needy. In some States, the full cost of care is paid. In others, a negotiated rate is developed which may or may not approximate the reasonable cost or reasonable charges for the services provided. Some States, however, depend upon the supplementation of the State agency’s below-cost allowances for care with contributions from relatives or the needy individual himself. As a matter of public policy, it would be best for all concerned: the needy individual, his relatives, the State agency, and the nursing home if the reimbursement made by the State represented the reasonable cost or reasonable charges for comparable services.
» # #
S. Rept. No. 744, 90th Cong., 1st Sess., at 187-188 (1967), U.S. Code Cong, and Admin. News, p. 3026.” Johnsons Professional Nursing Home v. Weinberger (5th Cir. 1974), 490 F.2d 841, 845.
There can be no doubt that the Illinois Department of Public Aid was well within its statutory grant of authority when it enacted its “no supplementation” regulation and, further, when it denied the plaintiff’s application for public assistance. The Public Aid Code provides that:
“The Department shall make all rules and regulations and take such action as may be necessary or desirable for carrying out the provisions of this Code, to the end that its spirit and purpose may be achieved and the public aid programs administered efficiently throughout the State.” (Ill. Rev. Stat. 1973, ch. 23, par. 12 — 13.)
The Department’s regulation was entirely reasonable and consistent with the spirit and goals of the law. The Department’s regulation in no way contravenes “family unity,” nor does it exclude those needy individuals with relatives willing to contribute to their support and maintenance from receiving public assistance. The regulation merely provides that in order to receive public assistance, those individuals must be placed in a State authorized facility rather than various private institutions of their own choosing. Furthermore, no issue of constitutional magnitude attaches to this case. The Department has always been, and remains willing to grant plaintiff public assistance if plaintiff will agree to be hospitalized in a State authorized facility which accepts the Department’s payment as payment in full. The Department has at all times given to the plaintiff treatment equal to the treatment given to all other individuals who are members of his class. Constitutional equal protection does not require that everyone be treated alike, but only that individuals similarly situated be treated alike. (Reed v. Reed (1971), 404 U.S. 71, 30 L. Ed. 2d 225, 92 S. Ct. 251; Tometz v. Board of Education (1968), 39 Ill. 2d 593, 601, 237 N.E.2d 498.) The Tometz court held that “The legislature is not required to choose between legislating against all evils of the same genus or not legislating at all.” By analogy, neither is the Illinois Department of Public Aid required to allow supplementation in the instant case because supplementation is sometimes allowed, under totally different circumstances, by the Illinois Department of Mental Health. In the instant case, it is the plaintiff who wishes to receive treatment disparate to other members of his class, that is, those individuals similarly situated who are eligible for public aid.
The majority appears not to recognize the undesirability of the practice that it will be condoning by its opinion and, therefore, has failed to reaffirm the reasonableness and the validity of the Illinois Department of Public Aid’s “no supplementation” policy. The majority has improperly substituted its economic judgment for that of the Illinois Department of Public Aid in the Department’s area of expertise. Johnsons Professional Nursing Home v. Weinberger (5th Cir. 1974), 490 F.2d 841, 844-45.