specially concurring in part and dissenting in part:
The majority has found that the trial court did not err in ruling that preliminarily, the Department must maintain the status quo and continue to allow Michael in-home care at the cost the Department provided to him under the MF/TD service program and that the trial court did not have jurisdiction to order the Department to pay Michael’s past-due home health care bills. Because I disagree with the majority’s second finding, I respectfully dissent.
In my opinion the nature of the relief sought in this case is not “a claim for payment of services rendered” against the Department or DHS. Rather, the principal relief Jones seeks is maintenance of adequate funding for his in-home medical care. Therefore, I would find that sovereign immunity does not bar the trial court’s order.
“In a proper case, the court may be authorized to grant a preliminary injunction or other appropriate preliminary relief to maintain the status quo during the pendency of an action for declaratory relief.” (Emphasis added.) Millikan v. Jensen, 4 Ill. App. 3d 580, 584, 281 N.E.2d 401, 404 (1972). In this case, the “last actual, peaceable, uncontested status preceding the controversy” (Limestone Development Corp. v. Village of Lemont, 284 Ill. App. 3d 848, 853, 672 N.E.2d 763, 767 (1996) (defining status quo)) was that time when defendants provided that funding, not after they terminated funding. The circuit court’s order seeks to maintain that status by ordering them to pay the outstanding bills and to continue to pay them. Absent the court’s order, the parties’ status would change dramatically. The court’s order effectively and correctly maintains the status quo and should be affirmed.
The majority relies upon Children’s Memorial Hospital v. Mueller, 141 Ill. App. 3d 951, 955-56, 491 N.E.2d 103, 106 (1986), to hold that sovereign immunity applies in this case. However, there, the court held that “a suit to compel a State official to perform his duty according to statutory authority or regulations is a suit against the State officer, not against the State itself.” (Emphasis in original.) Mueller, 141 Ill. App. 3d at 955, 792 N.E.2d at 105. In this case, the nature of the relief Jones seeks is for defendants to comply with their obligation under the State Medicare program, the ADA, and section 504 of the Rehabilitation Act to provide him with their services in a nondiscriminatory fashion. Jones has alleged that when defendants stopped paying Trinity under the MF/TD program, they were acting in a discriminatory fashion in violation of the statutes. Any deficiency in the amount Trinity received under the Department’s HSP service order until the time the trial court entered the preliminary injunction order was, therefore, caused by a state officer not performing his duty in accordance with statutory authority. The order to pay the past amount due is, in effect, an order that the Department should have continued funding for in-home care in accordance with the statutes. In other words, the order maintains the status quo. Therefore, under Mueller, sovereign immunity does not apply and the court could appropriately order payment of the past-due bills in the preliminary injunction.
For all of the foregoing reasons, I would hold that the circuit court had jurisdiction to order payment of Jones’s past-due bills for in-home medical care. Accordingly, I respectfully dissent from that portion of the majority’s order.