{ "id": 4286966, "name": "MABEL VINCENT, a Disabled Person, by Janice Reed, Her Daughter and Next Friend, Plaintiff-Appellee, v. THE DEPARTMENT OF HUMAN SERVICES, Defendant-Appellant", "name_abbreviation": "Vincent v. Dept. of Human Services", "decision_date": "2009-06-18", "docket_number": "No. 3\u201408\u20140096", "first_page": "88", "last_page": "99", "citations": [ { "type": "official", "cite": "392 Ill. App. 3d 88" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "376 Ill. App. 3d 1075", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4273407 ], "year": 2007, "pin_cites": [ { "page": "1079-80" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/376/1075-01" ] }, { "cite": "23 Ill. Reg. 11301", "category": "laws:admin_register", "reporter": "Ill. Reg.", "opinion_index": 0 }, { "cite": "615 So. 2d 192", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7461184 ], "year": 1993, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/so2d/615/0192-01" ] }, { "cite": "542 N.W.2d 391", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10701520 ], "year": 1996, "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/nw2d/542/0391-01" ] }, { "cite": "692 So. 2d 30", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11988395 ], "year": 1996, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/so2d/692/0030-01" ] }, { "cite": "614 N.W.2d 655", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 2000, "pin_cites": [ { "page": "663-64" } ], "opinion_index": 0 }, { "cite": "240 Mich. App. 348", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 150319 ], "year": 2000, "pin_cites": [ { "page": "360-64" } ], "opinion_index": 0, "case_paths": [ "/mich-app/240/0348-01" ] }, { "cite": "515 N.W.2d 245", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10593383 ], "year": 1994, "pin_cites": [ { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/nw2d/515/0245-01" ] }, { "cite": "899 P.2d 452", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 457759 ], "year": 1995, "pin_cites": [ { "page": "459-60" } ], "opinion_index": 0, "case_paths": [ "/kan/258/0161-01" ] }, { "cite": "258 Kan. 167", "category": "reporters:state", "reporter": "Kan.", "year": 1995, "pin_cites": [ { "page": "171-72" } ], "opinion_index": 0 }, { "cite": "668 N.E.2d 769", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "777" }, { "page": "778" } ], "opinion_index": 0 }, { "cite": "268 F.3d 955", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1949964 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "958" }, { "page": "959" } ], "opinion_index": 0, "case_paths": [ "/f3d/268/0955-01" ] }, { "cite": "688 N.E.2d 769", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "771" } ], "opinion_index": 0 }, { "cite": "423 Mass. 399", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 1027931 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "402-03" }, { "page": "401" }, { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/mass/423/0399-01" ] }, { "cite": "740 N.E.2d 978", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "980" }, { "page": "982" } ], "opinion_index": 0 }, { "cite": "433 Mass. 171", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 343575 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "172" }, { "page": "175-76" } ], "opinion_index": 0, "case_paths": [ "/mass/433/0171-01" ] }, { "cite": "218 Ill. 2d 302", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5735869 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "304-05" }, { "page": "305" }, { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/218/0302-01" ] }, { "cite": "198 Ill. 2d 380", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29956 ], "year": 2001, "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0380-01" ] }, { "cite": "228 Ill. 2d 200", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5706718 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "210" }, { "page": "211", "parenthetical": "this court reviews the Department's interpretation of Medicaid law de novo" }, { "page": "211" }, { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/228/0200-01" ] }, { "cite": "342 Ill. App. 3d 1035", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472570 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "1039" }, { "page": "1039", "parenthetical": "the courts review the Department's application of Medicaid law to the facts for clear error" }, { "page": "1038" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/1035-01" ] }, { "cite": "19 Ill. Reg. 2095", "category": "laws:admin_register", "reporter": "Ill. Reg.", "opinion_index": 0 }, { "cite": "19 Ill. Reg. 2905", "category": "laws:admin_register", "reporter": "Ill. Reg.", "weight": 2, "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a71396", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2006, "pin_cites": [ { "page": "et seq." }, { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "800 N.E.2d 1201", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "1207-09" } ], "opinion_index": 1 }, { "cite": "207 Ill. 2d 486", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 974991 ], "year": 2003, "pin_cites": [ { "page": "498" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/207/0486-01" ] }, { "cite": "850 N.E.2d 134", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "pin_cites": [ { "page": "137", "parenthetical": "\"We cannot, under the guise of statutory interpretation, remedy an apparent legislative oversight by rewriting a statute in a way that is inconsistent with its clear and unambiguous language\"" } ], "opinion_index": 1 }, { "cite": "221 Ill. 2d 157", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5704419 ], "year": 2006, "pin_cites": [ { "page": "162-63", "parenthetical": "\"We cannot, under the guise of statutory interpretation, remedy an apparent legislative oversight by rewriting a statute in a way that is inconsistent with its clear and unambiguous language\"" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/221/0157-01" ] }, { "cite": "342 Ill. App. 3d 1035", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472570 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "1040" }, { "page": "1040" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/342/1035-01" ] } ], "analysis": { "cardinality": 1164, "char_count": 29276, "ocr_confidence": 0.767, "pagerank": { "raw": 5.916146141896101e-08, "percentile": 0.3697099715079914 }, "sha256": "818914645c301997876e1fdd3adc76043666e68a399f308ad8ab8567bc6352b3", "simhash": "1:852aa4babfa62098", "word_count": 4747 }, "last_updated": "2023-07-14T19:31:50.333780+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MABEL VINCENT, a Disabled Person, by Janice Reed, Her Daughter and Next Friend, Plaintiff-Appellee, v. THE DEPARTMENT OF HUMAN SERVICES, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOLDRIDGE\ndelivered the opinion of the court:\nThis action was brought by the plaintiff, Janice Reed, as next friend of Mabel Vincent, her mother, against the Illinois Department of Human Services (IDHS or Department). The Department determined that Mabel Vincent had \u201cavailable assets\u201d of $138,119, as defined by the Social Security Act, also popularly known as the Medicaid Act (the Medicaid Act) (42 U.S.C. \u00a71396 et seq. (2006)). These funds were held in the Fred and Mabel Vincent Trust established by Mabel and her late husband in 1991. The Department determined that Mabel was required to \u201cspend down\u201d this amount before Medicaid would cover the medical expenses associated with her long-term nursing home care. The plaintiff appealed the Department\u2019s decision to the circuit court of Henry County, which reversed the Department\u2019s decision. The Department then sought review in this court. For the following reasons, we reverse the judgment of the circuit court and affirm the decision of the Department.\nFACTS\nMabel Vincent was born February 9, 1910. On August 29, 1991, she and her husband, Fred Vincent, placed assets worth $333,391 in an irrevocable trust, naming themselves as beneficiaries and their daughter, Janice, as trustee. The stated purpose of the trust was \u201cto provide extra funds necessary for [Fred and Mabel\u2019s] happiness over and above the essential, primary support services such as *** medical care and support which [they] expect will be provided to [them] through federal, state and local governmental sources.\u201d To that end, the trust provided that for purposes of determining Fred\u2019s or Mabel\u2019s eligibility for public aid, \u201cno part of the principal or income of this Trust shall be considered owned by [him or her].\u201d Rather, \u201cTrust assets are to be used only when governmental aid is not available.\u201d\nThe trust was \u201cintended to be a discretionary trust,\u201d and granted the trustee the \u201cabsolute discretion to determine if and when the [beneficiaries] need extra funds to supplement existing public or private funds and services\u201d and to \u201cpay out or withhold payment of Trust income or principal as she evaluates [their] needs.\u201d However, the trust provided that the trustee \u201cmust never use any income or principal *** to provide any goods or services for [Mabel and Fred] if [either] qualifies] to receive that benefit or service through any other public assistance programs.\u201d The trust provided that if the trustee, in her exclusive discretion, determined that continued distributions would result in reduced public assistance, she had the power to terminate such distributions. Upon termination of the trust, the remaining trust assets are to be distributed to Janice and her brother.\nOver the years, Janice distributed approximately $2,500 per month from the trust for Mabel\u2019s and Fred\u2019s care. Upon Fred\u2019s death in 1992, Mabel became the sole beneficiary of the trust. Janice testified at hearing that she provided care to Mabel in Mabel\u2019s home from 2000 to 2005. However, there was no evidence presented that Janice and Mabel entered into any agreement providing for Janice to be paid for her care of Mabel. On May 4, 2005, Mabel suffered a stroke and entered Hillcrest Nursing Home in Henry County, Illinois.\nOn June 16, 2005, Mabel, acting through Janice, applied for public aid (Medicaid) with the Department. At that time, the trust had a value of $138,119. The Department included the value of the trust in assessing Mabel\u2019s available assets and calculated that she had to \u201cspend down\u201d $136,119 before she would need public assistance. The Department notified Mabel of the decision that she was eligible for public aid only after she had spent $136,119 on her own care and that she had 60 days to request a formal hearing.\nMabel, through Janice acting as her power of attorney, requested a hearing. Prior to hearing, Mabel received a written statement of facts from the Department supporting its decision. Attached to the statement were copies of relevant Department regulations, including section 120.346 (89 Ill. Adm. Code \u00a7120.346, amended at 19 Ill. Reg. 2905, eff. February 27, 1995), which applied to trusts established prior to August 11, 1993. That section provided that when an applicant\u2019s assets are held in a self-settled, discretionary trust (\u201cMedicaid Qualifying Trust\u201d) \u201c[t]he maximum amount of payment permitted under the terms of [the] Medicaid qualifying trust *** shall be considered in determining eligibility for medical assistance, whether or not the maximum amount was distributed to the individual.\u201d 89 Ill. Adm. Code \u00a7120.346(b), amended at 19 Ill. Reg. 2095, eff. February 27, 1995.\nThe day before the hearing, Mabel\u2019s counsel faxed to the local Department office an invoice that he had prepared on Janice\u2019s behalf billing Mabel $141,960 for care received from Janice from 2000 to 2005. Counsel suggested that the invoice should be factored into the determination of Mabel\u2019s available assets.\nThe Department conducted the hearing on November 8, 2005. Mabel appeared through Janice and her counsel. The Department\u2019s local representative testified as to the value of trust and the Department\u2019s decision that the assets in the trust were available to Mabel, as previously outlined in the Department\u2019s statement of facts. The Department representative also addressed the invoice for Janice\u2019s services, stating that any payment to Janice would not affect Mabel\u2019s eligibility because there was no preexisting written agreement between Mabel and Janice for such payment. Absent such evidence that Mabel intended to pay Janice at the time the services were rendered, the Department would consider the services as having been rendered without expectation of payment.\nMabel\u2019s counsel argued that the trust should not be deemed available to Mabel because the trust language prohibited their consideration for purposes of determining her eligibility for public aid and forbade the trustee from making distributions that would render Mabel ineligible for public aid. As an alternative, counsel argued again that the trust should be depleted by the $141,960 that Janice was now billing her mother for the care she provided to her from 2000 to 2005.\nOn April 7, 2006, the Department issued a final administrative decision affirming the local office\u2019s decision to approve Mabel\u2019s application for public aid contingent on spending down the trust assets for her care. The Department upheld the local office\u2019s determination that the trust assets were available for Mabel\u2019s care, regardless of the language of the trust. It further found Janice\u2019s claim for five years of retroactive payment for her caring for her mother to be \u201cwithout merit.\u201d\nOn May 9, 2006, Mabel, through Janice as her next friend, filed a complaint for administrative review in the circuit court seeking reversal of the Department\u2019s decision regarding both the availability of the trust assets for Mabel\u2019s care and Janice\u2019s claim for payments for past provided services. Mabel died on July 22, 2006. No motion for substitution of proper party was made.\nOn August 8, 2007, the circuit court issued an order affirming the Department\u2019s decision that the trust was an available asset for Ma bel\u2019s care but reversing its decision with respect to payment for Janice\u2019s services. The court reasoned that, although Mabel never agreed to pay Janice, Janice deserved payment under an equitable theory of quantum meruit. The court ordered the Department to \u201cconform its ruling\u201d to reflect payment from the trust to Janice. Both parties filed motions for reconsideration, and the court heard arguments on December 18, 2007.\nOn January 9, 2008, the court issued a final order reversing the Department\u2019s decision that the trust was an available asset. The court determined that the trust was a \u201cMedicaid Qualifying Trust\u201d under section 120.346 of the Department\u2019s regulations and acknowledged that the Department could consider \u201c[t]he maximum amount of payment permitted under the terms [of the trust] *** in determining eligibility for medical assistance, whether or not the maximum amount was distributed to the individual.\u201d However, the court reasoned that, \u201cpursuant to the specific language of the trust at issue, no amount is payable to the beneficiary if doing so would affect her eligibility for public assistance\u201d and, therefore, \u201cthe principal and interest of the trust is exempt and should not be considered in the determination of eligibility.\u201d The court also reaffirmed its prior ruling with respect to Janice\u2019s entitlement to payment for her services.\nOn February 11, 2008, the Department filed its notice of appeal to this court.\nOn January 21, 2009, Janet filed a motion with the circuit court to substitute herself in her capacity as trustee of the Vincent Trust in the place of Mabel Vincent as plaintiff. The circuit court granted the motion that same day. The record contains no indication that the motion or the order were served upon the Department, nor does the record contain any notification to the Department.\nThe Department was first made aware of Mabel\u2019s death at oral argument before this court on January 26, 2009.\nANALYSIS\nOn appeal, the Department argues that the trial court erred, both in finding that trust assets were not available to Mabel for purposes of determining her eligibility for Medicaid and in reversing the Department\u2019s factual determination that the plaintiff had failed to establish the existence of a contract for Mabel to pay Janet for care.\nWhen reviewing a decision of an administrative agency, the appellate court reviews the decision of the agency, not the decision of the circuit court. Gayan v. Department of Human Services, 342 Ill. App. 3d 1035, 1039 (2003). The standard of review turns on whether the issue presented is a question of fact, a question of law, or a mixed question of fact and law. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008). Here, the Department determined that, under applicable federal Medicaid law, the trust assets were available for Mabel for purposes of determining her eligibility for medical assistance, regardless of the trust language to the contrary. The Department\u2019s decision on that matter is purely a question of law subject to de novo review. Cinkus, 228 Ill. 2d at 211 (this court reviews the Department\u2019s interpretation of Medicaid law de novo). The Department\u2019s determination that Janice\u2019s bill for care services had no effect on Mabel\u2019s eligibility for public aid is a mixed question of fact and law subject to the \u201cclearly erroneous\u201d standard of review. Gayan, 342 Ill. App. 3d at 1039 (the courts review the Department\u2019s application of Medicaid law to the facts for clear error). A decision is \u201cclearly erroneous\u201d only when the reviewing court is left with the definite and firm conviction that a mistake has been made. Cinkus, 228 Ill. 2d at 211. The \u201cclearly erroneous\u201d standard accords the agency substantial deference, in acknowledgment of the agency\u2019s experience and expertise in resolving matters under its jurisdiction. AFM Messenger Sevice, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 394 (2001).\n1. Availability of Trust Assets\nTurning to the Department\u2019s contention that it correctly determined that the trust assets were available for Mabel\u2019s care under federal medicaid law, notwithstanding the trust language to the contrary, at issue is the meaning of provisions in the federal Medicaid Act (42 U.S.C. \u00a71396a(k) (1988)) and section 120.346 of the Department\u2019s regulations (89 Ill. Adm. Code \u00a7120.346, amended at 19 Ill. Reg. 2905, eff. February 27, 1995). The Department interpreted both provisions as prohibiting Mabel\u2019s attempt to render herself eligible for Medicaid by sheltering assets in a self-settled trust and restricting the trustee from making any distribution that would render her ineligible for public aid. Our review begins with a discussion of federal Medicaid law.\nCongress enacted Title XIX of the Social Security Act (the Medicaid Act) (42 U.S.C. \u00a71396 et seq. (2006)) in 1965 to help the indigent obtain health care. See Gillmore v. Illinois Department of Human Services, 218 Ill. 2d 302, 304-05 (2006). The Medicaid Act \u201ccreated a cooperative program in which the federal government reimburses state governments for a portion of the costs to provide medical assistance.\u201d Gillmore, 218 Ill. 2d at 305. States design and administer their own plans but, in order to receive reimbursement, they \u201cmust comply with certain broad requirements imposed by federal statutes and regulations.\u201d Gillmore, 218 Ill. 2d at 305.\nOne such requirement for federal reimbursement mandates that, in order to qualify for medical assistance, an applicant must have insufficient income and resources to pay for her own medical expenses. 42 U.S.C. \u00a7\u00a71396a(a)(10)(A)(ii), 1396d(e) (1988). Thus, the Medicaid Act expresses an intent by Congress that \u201c[individuals are expected to deplete their own resources before obtaining assistance from the government.\u201d Lebow v. Commissioner of the Division of Medical Assistance, 433 Mass. 171, 172, 740 N.E.2d 978, 980 (2001).\nIn an attempt to circumvent the requirement that an applicant deplete his or her own resources before being eligible for public assistance, some planners devised the \u201cMedicaid Qualifying Trust\u201d (MQT). These MQTs operated by having a person place his or her assets in trust so that those assets would provide for the person\u2019s comfort and well-being while at the same time creating eligibility for public aid. The theory behind this instrument was that \u201cif an individual settled assets in an irrevocable trust and the disposition of those assets was at the discretion of a trustee, no beneficiary of the trust would have a right to call for them, and so the assets could not be considered available to the beneficiary\u201d for purposes of determining eligibility for public aid. Cohen v. Commissioner of the Division of Medical Assistance, 423 Mass. 399, 402-03, 688 N.E.2d 769, 771 (1996).\n\u201cNot surprisingly, Congress responded to the use of this technique with condemnation.\u201d Ramey v. Reinertson, 268 F.3d 955, 958 (10th Cir. 2001). In 1985, in its report recommending passage of a bill to prohibit such practices, the House Committee on Energy and Commerce wrote:\n\u201cIt has come to the attention of the Committee that some attorneys and financial advisors have suggested to the affluent clients that, as a matter of estate planning, they consider placing most of their assets into a specially designed irrevocable trust ***. The Committee feels compelled to state the obvious. Medicaid is, and always has been, a program to provide basic health coverage to people who do not have sufficient income of resources to provide for themselves. When affluent individuals use Medicaid qualifying and similar \u2018techniques\u2019 to qualify for the program, they are diverting scarce Federal and State resources from low-income elderly and disabled individuals, and poor women and children. This is unacceptable to the Committee.\u201d H.R. Rep. No. 99 \u2014 265, at 71-72 (1985).\nIn 1988, in reaction to the growing use of MQTs, Congress adopted section 1396a(k) of the Medicaid Act (42 U.S.C. \u00a71396a(k) (1988)). The statute defined the MQT as:\n\u201ca trust, or similar legal device, established (other than by will) by an individual (or an individual\u2019s spouse) under which the individual may be the beneficiary of all or part of the payments from the trust and the distribution of such payments is determined by one or more trustees who are permitted to exercise any discretion with respect to the distribution to the individual.\u201d 42 U.S.C. \u00a71396a(k) (1988).\nHaving defined MQTs, the statute then established that such devices were \u201cno longer a permissible means to shelter assets for purposes of Medicaid eligibility.\u201d Ramey, 268 F.3d at 959. Rather, \u201cthe amounts from the trust deemed available to a grantor\u201d for Medicaid purposes included \u201cthe maximum amount of payments that may be permitted under the terms of the trust to be distributed to the grantor, assuming the full exercise of discretion by the trustee or trustees for the distribution of the maximum amount to the grantor.\u201d 42 U.S.C. \u00a71396a(k)(l) (1988). Congress further provided that the rule applies \u201cwhether or not the medicaid qualifying trust is irrevocable or is established for purposes other than to enable a grantor to qualify for medical assistance *** or *** whether or not the discretion described [above] is actually exercised.\u201d 42 U.S.C. \u00a71396a(k)(3)(A) (1988). This provision has been interpreted as including \u201cthe maximum amount (principle or income) and interest to be deemed available to the grantor, asking what is the greatest amount the trustees in any circumstances have discretion to disburse,\u201d i.e., whatever is the most the beneficiary might under any state of affairs receive in the full exercise of that discretion is the amount that is counted as available for Medicaid eligibility. Cohen v. Commissioner of the Division of Medical Assistance, 423 Mass. 399, 401, 668 N.E.2d 769, 777 (1996).\nIn the instant matter, the appellee maintains that Mabel\u2019s MQT was not covered by the statutory interpretation discussed above because in her MQT, the trustee has no discretion to make payments for the benefit of Mabel if such payments would impair her Medicaid eligibility. Mabel\u2019s argument is that because her trustee has no discretion, her MQT is not one contemplated by Congress in section 1396a(k).\nThe Department maintains that Mabel reads the statute far too narrowly. It points out that the intent of the statute, as articulated in the statute and in the committee comments is to remove any \u201ctechniques\u201d involving self-settled irrevocable trusts to allow affluent individuals to maintain access to assets while at the same time qualifying for public aid. In support of its argument the Department cites several cases from other jurisdictions holding that the type of limitations imposed upon the trustee in the Vincent Trust did not shelter trust assets from the spend down requirement under the Medicaid Act. What mattered was that trust assets could be paid out for their benefit. See Lebow, 433 Mass, at 175-76, 740 N.E.2d at 982; Cohen, 423 Mass. at 415, 668 N.E.2d at 778; Williams v. Kansas Department of Social & Rehabilitation Services, 258 Kan. 167, 171-72, 899 P.2d 452, 459-60 (1995); Striegel v. South Dakota Department of Social Services, 515 N.W.2d 245, 248 (S.D. 1994); National Bank of Detroit v. Department of Social Services, 240 Mich. App. 348, 360-64, 614 N.W.2d 655, 663-64 (2000); Hargrove v. State of Louisiana Department of Health & Hospitals, 96\u2014CA\u20141072, p.2 (La. App. 1 Cir. 3/27/97), 692 So. 2d 30, 33; In re Kindt, 542 N.W.2d 391, 399 (Minn. App. 1996); Gulick v. Department of Health & Rehabilitative Services, 615 So. 2d 192, 197 (Fla. App. 1993).\nWe also note that had Mabel\u2019s trust been created after August 10, 1993, there is no question that the trust assets would have to be \u201cspent down\u201d prior to her being eligible for public aid. In 1994, Congress repealed section 1396a(k) and replaced it with section 1396p(d), which provided that: (1) any self-settled trust assets were available regardless of whether the trustee had any discretion (42 U.S.C. \u00a71396p(d)(2)(C) (1994)); and (2) if any of the corpus of an irrevocable trust could be used for the grantor\u2019s benefit, then all of the trust\u2019s corpus is counted as an available asset (42 U.S.C. \u00a71396p(d)(3)(B) (1994)).\nReviewing this matter de novo, we find that the Department is correct in its determination that the clear intent of the Medicaid Act is to prevent the use of \u201cany technique\u201d that would allow someone to set up a MQT with the purpose of maintaining the availability of certain private assets while also qualifying for receipt of public funds. The weight of case law from other jurisdictions, as noted above, clearly supports the Department\u2019s decision which is under review herein. We therefore affirm the decision of the Department that the Vincent Trust assets are available for Mabel Vincent\u2019s care as a precondition of her eligibility for public assistance under the Medicaid Act.\n2. Janice\u2019s Claim for Services\nWe next consider whether the Department erred in determining that Janice\u2019s invoice for past rendered services to Mabel did not affect Mabel\u2019s eligibility for Medicaid assistance. As this issue involves a mixed question of law and fact, the clearly erroneous standard of review is appropriate. Cinkus, 228 Ill. 2d at 211.\nThe Department\u2019s decision to disregard Janice\u2019s invoice for services was not clearly erroneous. Even if Janice\u2019s invoice had been paid, which it was not, such transfers would be disregarded by the Department because there was no evidence that the transfer was for \u201cfair market value\u201d or \u201cexclusively for a reason other than to qualify for assistance.\u201d 89 Ill. Adm. Code \u00a7120.387(e)(10), amended at 23 Ill. Reg. 11301, eff. August 27, 1999; 305 ILCS 5/5 \u2014 2.1(a) (West 2002). Janice allegedly cared for Mabel from 2000 to 2005. The record showed that Mabel never indicated an agreement to pay Janice for her services. Then in November 2005, after the Department had determined that Mabel had to spend down the assets of the Vincent Trust to qualify for assistance, Mabel\u2019s counsel prepared a bill for services on Janice\u2019s behalf. At the time, the Trust had a value of $138,119 and the invoice, going back some five years, amounted to $141,960, which was just enough to deplete the trust. Given these facts, we cannot say that the Department\u2019s finding that the invoice was not \u201cexclusively for a reason other than to qualify for assistance\u201d was clearly erroneous.\nCONCLUSION\nThe Department properly denied Mabel Vincent\u2019s application for Medicaid. The trial court was in error in reversing the decision of the Department. The judgment of the circuit court of Henry County is reversed, and the decision of the Department is affirmed.\nCircuit court reversed; Department affirmed.\nSCHMIDT, J., concurs.\nThis court instructed the parties to file supplemental briefs addressing the jurisdictional question arising from the fact that Mabel Vincent died prior to the circuit court entering the order on appeal without a proper substitution of parties having been ordered. A party\u2019s death suspends the jurisdiction of the trial court until a proper successor has been appointed. Voga v. Voga, 376 Ill. App. 3d 1075, 1079-80 (2007). However, we note that this court has addressed this problem before in Gayan v. Department of Human Services, 342 Ill. App. 3d 1035, 1038 (2003), wherein we granted a substitution of parties pursuant to Supreme Court Rule 366(a)(5) (155 Ill. 2d R. 366(a)(5)) (appellate court may enter any judgment or make any order that should have been made).", "type": "majority", "author": "JUSTICE HOLDRIDGE" }, { "text": "JUSTICE McDADE,\nspecially concurring:\nI would like to suggest a supplemental argument supporting affirming the Department\u2019s finding on the first issue that does not rely on case law from outside Illinois. The argument would be:\nIn enacting section 1396p(d), Congress closed a loophole in the MQT law that apparently permitted Medicaid applicants to do exactly what Mabel did here and what the new version of the law prohibits; specifically, a loophole through which applicants for Medicaid could place assets in trust then restrict the trustee\u2019s authority to distribute those assets to maintain Medicaid eligibility. This court may not now judicially close the legislative loophole under the guise of statutory construction or interpretation of the terms of Mabel\u2019s trust. See People v. Taylor, 221 Ill. 2d 157, 162-63, 850 N.E.2d 134, 137 (2006) (\u201cWe cannot, under the guise of statutory interpretation, remedy an apparent legislative oversight by rewriting a statute in a way that is inconsistent with its clear and unambiguous language\u201d).\nMabel\u2019s argument implicitly relies on this principle and is, essentially, that, fortuitously for her, the Department is limited in its actions and determinations to an application of the actual language of the Medicaid Act and its administrative language and may not act based on the spirit or intent of the law. The plain language of the law applicable to Mabel\u2019s MQT restricts the Department to an examination of the trustee\u2019s authority to distribute assets. The new law permits the Department to consider those assets as available \u201cwithout regard to the purpose for which the trust was established, whether the trustee has or exercises any discretion under the trust, or whether restrictions are in place regarding when or whether distributions are made.\u201d Gayan, 342 Ill. App. 3d at 1040, 796 N.E.2d at 661. The court has found that the new version of the MQT law is better aligned with the spirit of the Medicaid Act. See Gayan, 342 Ill. App. 3d at 1040, 796 N.E.2d at 661 (section 1396p(d) \u201cis consistent with Congress\u2019s intent to strictly limit Medicaid payments to the \u2018truly needy.\u2019 [Citation.]\u201d).\nHowever, our supreme court has made clear:\n\u201c[W]here a plain or literal reading of a statute produces absurd results, the literal reading should yield: \u2018It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. *** If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity.\u2019 [Citations.]\nThe principle that statutory language should not be construed to produce an absurd result is a deeply rooted one. Over 130 years ago, the United States Supreme Court interpreted a statute which, under its plain terms, made it illegal in all instances to obstruct the passage of mail or a mail carrier. The Court held that the statute did not apply to a sheriff who executed an arrest warrant against a mail carrier while he was delivering mail. In so holding, the Court cited two instances, both centuries old, where the plain language of a law was not followed because doing so produced an absurd result:\n\u2018The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law which enacted, \u201cthat whoever drew blood in the streets should be punished with the utmost severity,\u201d did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plow-den, that the statute of 1st Edward II, which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire \u2014 \u201cfor he is not to be hanged because he would not stay to be burnt.\u201d \u2019 [Citation.]\nMore recently, Judge Posner has explained the rule that absurd results are to be avoided, even in the face of plain language:\n\u2018Usually when a statutory provision is clear on its face the court stops there, in order to preserve language as an effective medium of communication from legislatures to courts. If judges won\u2019t defer to clear statutory language, legislators will have difficulty imparting a stable meaning to the statutes they enact. But if the clear language, when read in the context of the statute as a whole or of the commercial or other real-world (as opposed to law-world or word-world) activity that the statute is regulating, points to an unreasonable result, courts do not consider themselves bound by \u201cplain meaning,\u201d but have recourse to other interpretive tools in an effort to make sense of the statute. [Citations.] They do not want to insult the legislature by attributing absurdities to it.\u2019 [Citation.].\u201d People v. Hanna, 207 Ill. 2d 486, 498, 800 N.E.2d 1201, 1207-09 (2003).\nHere, a literal reading of the applicable regulation leads to an absurd result. Specifically, a literal reading would permit Mabel to accomplish exactly that which its drafters intended to prevent. That is, the sheltering of assets to create Medicaid eligibility. To apply section 120.346 literally in this case would allow the trust to accomplish the result it seeks, to shelter Mabel\u2019s assets from any distribution that \u201cwill result in reduce [(sic)] public assistance,\u201d but which it plainly seeks to prevent. Under the authority granted in Hanna, we turn to the intent of the MQT regulation and conclude that the drafters of the Medicaid Act and the Illinois regulations intended to prevent applicants for public assistance from sheltering their own assets to qualify for public aid.\nIn light of the legislators\u2019 intent, and based on the record before it, I believe we must also conclude that the trust in question seeks to accomplish the prohibited result. Therefore, I believe we must agree that the assets in the trust are available to Mabel and, accordingly, are subject to the spend down provisions before Mabel qualifies for medicaid assistance.", "type": "concurrence", "author": "JUSTICE McDADE," } ], "attorneys": [ "Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Rachel Murphy (argued), Assistant Attorney General, of counsel), for appellant.", "Virgil A. Thurman (argued), of Geneseo, for appellee." ], "corrections": "", "head_matter": "MABEL VINCENT, a Disabled Person, by Janice Reed, Her Daughter and Next Friend, Plaintiff-Appellee, v. THE DEPARTMENT OF HUMAN SERVICES, Defendant-Appellant.\nThird District\nNo. 3\u201408\u20140096\nOpinion filed June 18, 2009.\nMcDADE, J., specially concurring.\nLisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Rachel Murphy (argued), Assistant Attorney General, of counsel), for appellant.\nVirgil A. Thurman (argued), of Geneseo, for appellee." }, "file_name": "0088-01", "first_page_order": 104, "last_page_order": 115 }