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NO. 5-07-0700
N O T IC E Decision filed 03/27/09. The text of this dec ision m ay b e changed or corrected prior to the P e t i ti o n for filing of a or the

IN THE APPELLATE COURT OF ILLINOIS

Re hea ring

FIFTH DISTRICT ________________________________________________________________________ THOMAS BIEKERT, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 07-MR-8 ) BARRY S. MARAM, Director of ) Healthcare and Family Services, or His ) Successor, in His Official Capacity, and ) CAROL L. ADAMS, Secretary of Human ) Services, or Her Successor, in Her Official ) Capacity, ) Honorable ) Andrew J. Gleeson, Defendants-Appellants. ) Judge, presiding. ________________________________________________________________________ PRESIDING JUSTICE WEXSTTEN delivered the opinion of the court: The plaintiff filed in the circuit court of St. Clair County a complaint for administrative review against the defendants, Barry S. Maram, in his official capacity as the Director of Healthcare and Family Services (DHCFS), and Carol L. Adams, in her official capacity as the Secretary of Human Services (DHS). Before the DHCFS, the plaintiff sought funding for community integrated living arrangement (CILA) services under the Illinois Medicaid home and community-based services for adults with developmental disabilities (HCBS-DD) waiver program, which allows developmentally disabled adults to receive needed services outside of an institution. DHCFS determined that the plaintiff was not eligible for CILA services because he was not in need of "active treatment." In re Biekert, Ill. Department of Healthcare & Fam. Services Op. 93-112-107116 (December 8, 2006). The circuit court reversed DHCFS's decision, found that the plaintiff was eligible for placement in CILA, and directed the defendants to fund in-home CILA services appropriate for the plaintiff's needs. We affirm in part and vacate in part. 1

disposition of the same.

BACKGROUND The plaintiff has had cerebral palsy since shortly after his birth in 1961. On September 27, 2001, he applied for 10 hours per day of intermittent in-home services with the preadmission screening (PAS) agency charged with determining eligibility for CILA services for persons with developmental disabilities. The PAS agent, Michelle M axwell, found him eligible and determined that he had a need for active treatment. However, DHS, which oversees funding and services to persons with developmental disabilities, thereafter issued a letter denying the plaintiff those benefits. On or around October 11, 2005, the plaintiff again applied for CILA services, and PAS agent Craig Mentzer evaluated the plaintiff on behalf of DHS. Mentzer found that the plaintiff was developmentally disabled, having substantial functional limitations in self-care, mobility, and capacity for independent living, but he determined that the plaintiff was not eligible for the CILA program because he did not require active treatment. On January 6, 2006, the plaintiff appealed that decision to DHCFS. On October 17, 2006, DHCFS conducted an administrative hearing. At the hearing, Mentzer testified that his duties included screening and assessing individuals to determine their eligibility for Medicaid waiver funded services. Mentzer testified that he assessed the plaintiff's functioning as equivalent to an overall adaptive age of three years and one month. Mentzer stated that he determined that the plaintiff needed assistance in bathing, dressing, grooming, and hygiene. Mentzer testified that the plaintiff was not ambulatory, had a wheelchair, and required someone in the home to assist him. Mentzer admitted that the plaintiff needed life skills training in areas of activities of daily living and use of his limbs, including assistance to maintain his skills in his left hand. Mentzer testified that the plaintiff would not "be able to live independently in the community by himself." Based upon the documentation and his assessment, Mentzer found the plaintiff "heavy in developmental disability, but not [in] need of active treatment," because, although the plaintiff was physically unable to perform various tasks, he had the cognitive ability to know how to do so. 2

The representative for DHS, Robert Holladay, acknowledged that the HCBS-DD waiver program was a developmental disability waiver program, authorizing services to groups who have a developmental disability and not only to those with mental retardation. Holladay testified that the CILA program is a form of residential support services under the HCBS-DD waiver program for persons with developmental disabilities who need active treatment. Holladay acknowledged that the plaintiff was a person with a developmental disability who was diagnosed with cerebral palsy that occurred prior to the age of 22 and who experienced substantial functional limitations in three out of six major life activity areas because of the cerebral palsy. Holladay testified, however, that the plaintiff was ineligible for the CILA program because he did not need active treatment. Holladay testified that "active treatment" was a provision derived from the regulations and was another term for "habilitation," which is the acquisition of new behaviors. Holladay testified that a need for "active treatment" involved "some kind of cognitive limitation." Holladay testified that the plaintiff had the capacity to make his own decisions medically and financially, was intelligent and aware of his surroundings, had earned a high school education, and had participated in college courses. Holladay testified that the plaintiff did not need specialized training or guidance to learn skills such as eating independently. Holladay testified that the plaintiff knew what he needed to do and knew how to manage his affairs. Holladay stated, for example, that if someone suggested to the plaintiff that he slow down, he could do it immediately and would not need the type of specialized program to teach him how to do so. Holladay testified that the plaintiff's needs involved physical supports, for adaptive equipment and adaptive modifications to his environment. Holladay testified that because the plaintiff needed only physical supports and training for his physical development, he did not need "the kind of specialized training that [is] provide[d] within active treatment." Holladay stated the following: "[The plaintiff] did not appear to require aggressive and consistent programming. These are parts of the definition of [']active treatment.['] Continuous programming 3

to acquire new skills or maintain current ones ***, aggressive and consistent programming, things like every hour of every day, the same way for every staff person, whoever there *** comes in and works with the individual. And they have to seek opportunities to teach the individual how to develop the skill that they're looking for." Holladay admitted that numerous supports and therapies that would address the plaintiff's physical needs caused by his cerebral palsy fell under the definition of "active treatment." Holladay acknowledged that the plaintiff needed an evaluation for the

progression of his cerebral palsy, medical services for his history, physical and other therapies to address his rigidity and spasticity, residential care and assistance in his applications of daily living, and ongoing medical and diagnostic services to prevent decubitus and bowel-related conditions. Holladay acknowledged that these are services available to people who need active treatment but that these services are not the core part of active treatment because the core part of active treatment deals with a person's cognition. After reviewing the evidence and testimony presented at the administrative hearing, the hearing officer upheld DHS's decision to deny the plaintiff's request for CILA services under the HCBS-DD waiver program. Specifically, the hearing officer stated, "The record of the hearing shows that it is clear that the [plaintiff] is a person with [d]evelopmental [d]isabilities and requires active treatment," but the hearing officer also stated, "[H]is need for active treatment is due to his physical needs and not his cognitive needs." On December 8, 2006, DHCFS entered its final administrative decision, adopting the findings of fact of the hearing officer and denying CILA services to the plaintiff. In re Biekert, Ill. Department of Healthcare & Fam. Services Op. 93-112-107116 (December 8, 2006). On January 8, 2007, the plaintiff filed a complaint for administrative review, requesting the circuit court to find him eligible for in-home CILA services and to order DHCFS and DHS to fund the in-home intermittent CILA services. The plaintiff argued before the circuit court that to be eligible for CILA services, under the HCBS-DD waiver program, he must only demonstrate that he suffers from a qualifying developmental disability 4

which occurred prior to age 22 and is likely to continue indefinitely and results in substantial functional limitations in three or more major life activities. The plaintiff argued that he need not demonstrate the need for "active treatment" to qualify for services. The defendants argued that the HCBS-DD waiver and DHS's PAS manual require that an individual applying for HCBS-DD waiver services, such as CILA services, be developmentally disabled and in need of active treatment. The defendants argued that, although the plaintiff met the

definition of "developmentally disabled," because the plaintiff was not cognitively impaired and his need for services was purely physical in nature, he did not require active treatment. On November 13, 2007, the circuit court found that the plaintiff was eligible for inhome CILA services, and the court reversed the decision of DHCFS. The circuit court ordered that the plaintiff be provided in-home CILA services "in an amount appropriate to meet [his] needs as determined by his interdisciplinary team." On December 14, 2007, the defendants filed a notice of appeal. ANALYSIS DHCFS is a state administrative agency that issues final administrative decisions subject to review by the circuit court under the Administrative Review Law (735 ILCS 5/3101 et seq. (West 2004)). In reviewing an administrative decision, the court must consider whether the question presented is one of fact, one of law, or a mixed question of fact and law. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 390 (2001). If the issue necessitates the interpretation of a statute, regulation, or rule connected with the administrative agency involved in the case, the question is one of law, the standard of review for the reviewing court is de novo, and the agency's interpretation is considered relevant but not binding on the reviewing court. People ex rel. Madigan v. Illinois

Commerce Comm'n, 231 Ill. 2d 370, 380 (2008); Branson v. Department of Revenue, 168 Ill. 2d 247, 253-54 (1995). "Administrative rules and regulations have the force and effect of law ***". Madigan, 231 Ill. 2d at 380. Courts must construe administrative rules and regulations under the same standards that govern the construction of statutes, with the primary objective to ascertain and 5

give effect to the drafters' intent. Madigan, 231 Ill. 2d at 380. The surest and most reliable indicator of the drafters' intent is the regulation's language. Madigan, 231 Ill. 2d at 380. In determining the plain meaning of a regulation, "we consider the regulation in its entirety, keeping in mind the subject it addresses and the apparent intent *** in enacting it." Madigan, 231 Ill. 2d at 380. We must "read the regulatory scheme as a whole, 'so that no part of it is rendered meaningless or superfluous.' " Perez v. Illinois Department of Children & Family Services, 384 Ill. App. 3d 770, 773 (2008) (quoting People v. Jones, 214 Ill. 2d 187, 193 (2005)); see also Marion Hospital Corp. v. Illinois Health Facilities Planning Board, 324 Ill. App. 3d 451, 456 (2001) ("administrative rules and regulations should be construed together with the statute pursuant to which they were adopted in order to insure a sound and effective legislative program"). "Where the language of the regulation is clear and unambiguous, we must apply it as written ***." Madigan, 231 Ill. 2d at 380. Established in 1965 when Congress amended the Social Security Act, Medicaid is a cooperative federal-state program under which states receive federal funding to provide medical assistance to low-income groups. 42 U.S.C.

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