2022 IL App (2d) 210234 No. 2-21-0234 Opinion filed June 29, 2022 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE NORTHWESTERN ILLINOIS AREA ) Appeal from the Circuit Court AGENCY ON AGING, ) of Winnebago County. ) Plaintiff-Appellant, ) ) v. ) No. 20-MR-38 ) PAULA BASTA, in Her Official Capacity as ) Director of Aging, ) Honorable ) Lisa Renae Fabiano, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUDSON delivered the judgment of the court, with opinion. Presiding Justice Bridges and Justice Hutchinson concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, the Northwestern Illinois Area Agency on Aging, filed in the circuit court of Winnebago County a three-count complaint against defendant, Paula Basta, in her capacity as the director of the Department on Aging (Department). In the complaint, plaintiff alleged that the Department had enacted administrative rules that were not adopted pursuant to the procedure mandated by the Illinois Administrative Procedure Act (Act) (5 ILCS 100/1-1 et seq. (West 2020)).

Plaintiff sought the entry of an order stating that the rules were invalid. Defendant filed a motion to dismiss plaintiff’s complaint, pursuant to section 2-619.1 of the Code of Civil Procedure (Code)

(735 ILCS 5/2-619.1 (West 2020)), alleging that the matters complained of were untimely raised

2022 IL App (2d) 210234 or exempt from the Act’s rulemaking provisions (see 735 ILCS 5/2-615, 2-619(a)(5), (a)(9) (West

2020)). Following a hearing, the trial court dismissed counts I and II of the complaint without prejudice, dismissed count III with prejudice, and granted plaintiff leave to file an amended complaint.

¶2 Plaintiff subsequently filed a six-count, first amended complaint. Plaintiff again alleged

that the Department had enacted various administrative rules that were not adopted pursuant to the procedure mandated by the Act and again sought entry of an order stating that the rules were

invalid. Defendant again responded with a motion to dismiss pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2020)). Defendant alleged that the matters raised in the first amended complaint were untimely, were exempt from the Act’s rulemaking provisions, or were not rules at all, and she alleged that plaintiff lacked standing to raise certain claims (735 ILCS 5/2-

615, 2-619(a)(5), (a)(9) (West 2020)). The trial court dismissed with prejudice counts I through

IV of the first amended complaint, pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West

2020)). The trial court dismissed with prejudice counts V and VI, pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2020)). Thereafter, plaintiff filed a notice of appeal challenging the dismissal of count III of its original complaint and the dismissal of all six counts of its first amended complaint. For the reasons set forth below, we affirm.

¶3 I. BACKGROUND

¶4 A. The Parties

¶5 Defendant is the current director of the Department. The Department administers programs for senior citizens in Illinois, including receiving and disbursing federal funds made available to it under the legislation originally enacted as the Older Americans Act of 1965, now codified as amended at 42 U.S.C. § 3001 et seq. (Older Americans Act). See 42 U.S.C. § 3025(a)(1) (2018)

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(requiring states to designate an agency to receive Older Americans Act funds); 20 ILCS 105/4

(West 2020) (providing that the Department “shall be the single State agency for receiving and disbursing federal funds made available under the ‘Older Americans Act.’ ”). In implementing the Older Americans Act, the Department designates public and private nonprofit organizations throughout Illinois as “area agenc[ies] on aging” (AAAs), each of which provides services to senior citizens within a specific geographic area. 42 U.S.C. § 3025(a)(2)(A) (2018); 20 ILCS

105/3.07, 3.08 (West 2020). Under the Older Americans Act, the United States Department of Health and Human Services (HHS) distributes federal funds to the Department, which then distributes those funds to the AAAs. 42 U.S.C. § 3025(a) (2018); 20 ILCS 105/3.07, 3.08, 4 (West

2020). In turn, AAAs “make subgrants or contracts to service providers” that offer various services

to older adults. 45 C.F.R. § 1321.1(c) (2020). Plaintiff, a private nonprofit entity, is the AAA for Area 1, which comprises the counties of Jo Daviess, Stephenson, Winnebago, Boone, Carroll, Ogle, De Kalb, Whiteside, and Lee. 20 ILCS 105/3.08 (West 2020).

¶6 The Department may also disburse Older Americans Act funds for the State Long-Term

Care Ombudsman program, which is designed to investigate and act on complaints regarding long- term care facilities. 42 U.S.C. §§ 3030d(a)(10), 3058g(a)(3) (2018); 45 C.F.R. § 1321.63(a)(5)

(2020); 20 ILCS 105/4.04 (West 2020). Although the Department appoints the State Long-Term

Care Ombudsman (Ombudsman) and operates the Ombudsman’s office, that office is separate from the Department’s other divisions. 42 U.S.C. § 3058g(a)(1)(A) (2018); 45 C.F.R.

§ 1324.11(b)(1) (2020); 89 Ill. Adm. Code 270.134 (2019).

¶7 B. The Illinois Administrative Procedure Act

¶8 The Act sets forth the requirements for the promulgation of rules by administrative agencies. 5 ILCS 100/1-1 et seq. (West 2020). The Act applies to the Department. 20 ILCS

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105/5.02 (West 2020) (stating that the provisions of the Act “are hereby expressly adopted and shall apply to all administrative rules and procedures of the Department [on Aging]”). The Act

defines a “rule” as an “agency statement of general applicability that implements, applies, interprets, or prescribes law or policy.” 5 ILCS 100/1-70 (West 2020). However, the term does not include “statements concerning only the internal management of an agency and not affecting private rights or procedures available to persons or entities outside the agency,” “informal advisory rulings,” “intra-agency memoranda,” or “the prescription of standardized forms.” 5 ILCS 100/1-

70 (West 2020). Moreover, while the Act requires administrative agencies to comply with its rulemaking provisions “[b]efore the adoption, amendment, or repeal of any rule” (5 ILCS 100/5-

35(a) (West 2020)), the Act’s rulemaking provisions do not apply to (1) “a matter relating solely to agency management or personnel practices or to public property, loans, or contracts” (5 ILCS

100/5-35(c) (West 2020)) or (2) “the adoption of any rule required by federal law in connection with which the Department is precluded by law from exercising any discretion” (20 ILCS 105/5.02

(West 2020)).

¶9 Administrative rulemaking under the Act involves a three-step process. See Department of Revenue v. Civil Service Comm’n, 357 Ill. App. 3d 352, 356-57 (2005); Weyland v. Manning, 309

Ill. App. 3d 542, 543-44 (2000). The first step, known as the first notice period, gives notice of the proposed rule in the Illinois Register. 5 ILCS 100/5-40(b) (West 2020); Weyland, 309 Ill. App. 3d at 543. The public has 45 days from the date the notice is published in which to comment. 5 ILCS

100/5-40(b) (West 2020); Weyland, 309 Ill. App. 3d at 543. If during the first 14 days of the first notice period the agency proposing the rule receives a request for a public hearing from 25

interested persons, an association representing at least 100 interested persons, the Governor, the Joint Committee on Administrative Rules (JCAR), or a unit of local government that may be

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Weyland, 309 Ill. App. 3d at 543.

¶ 10 At the end of the first notice period begins the second notice period, during which the agency must submit certain information to JCAR in a document called a second notice. 5 ILCS

100/5-40(c) (West 2020); 1 Ill. Adm. Code 220.600 (1994); Weyland, 309 Ill. App. 3d at 544.

JCAR is a bipartisan, bicameral legislative-support-services agency that reviews proposed and existing rules as well as agencies’ compliance with the rulemaking procedure. 5 ILCS 100/5-90

(West 2020); 25 ILCS 130/1-5, 2-1 (West 2020); Department of Revenue, 357 Ill. App. 3d at 356;

Weyland, 309 Ill. App. 3d at 544. The second notice period is also known as the legislative review period. Department of Revenue, 357 Ill. App. 3d at 356; Weyland, 309 Ill. App. 3d at 544 (citing

Robert John Kane, Specific Rulemaking Procedures in Illinois, in Illinois Administrative Law

§ 5.19 (Ill. Inst. for Cont. Legal Educ. 1991)). During this time, JCAR reviews the second notice

submitted by the agency. ^[1] Ill. Adm. Code 220.600 (1994); Weyland, 309 Ill. App. 3d at 544. The Illinois Administrative Code sets forth certain requirements that a second notice must meet for JCAR to accept it. ^[1] Ill. Adm. Code 220.600 (1994); Weyland, 309 Ill. App. 3d at 544. If the second notice is not satisfactory, JCAR may reject it. ^[1] Ill. Adm. Code 220.600 (1994); Weyland, 309 Ill.

App. 3d at 544. After reviewing the second notice, JCAR may submit questions to the agency. ^[1]

Ill. Adm. Code 220.700(b) (1994); Weyland, 309 Ill. App. 3d at 544. Upon completion of its review, JCAR will file either a certification of no objection, a statement of recommendation that the agency pursue some further action, a statement of objection to the proposed rule, or a statement prohibiting the filing of the proposed rule. 5 ILCS 100/5-40(c) (West 2020); 1 Ill. Adm. Code

220.1000 (1994); Weyland, 309 Ill. App. 3d at 544.

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¶ 11 The third and final step is adoption of the rule. Department of Revenue, 357 Ill. App. 3d at

356-57; Weyland, 309 Ill. App. 3d at 544. An agency may file a proposed rule for adoption after

(1) the second notice period has expired, (2) the agency has received a certification of no objection from JCAR, or (3) the agency has responded to a statement of objection from JCAR. 5 ILCS 100/5-

40(d) (West 2020); 1 Ill. Adm. Code 220.1100 (1994); Weyland, 309 Ill. App. 3d at 544. A proceeding to contest any rule on the ground of noncompliance with the procedural requirements

of the Act’s rulemaking provisions “must be commenced within 2 years from the effective date of the rule.” 5 ILCS 100/5-35(b) (West 2020); Filliung v. Adams, 387 Ill. App. 3d 40, 53 (2008).

¶ 12 C. Plaintiff’s Original Complaint

¶ 13 On January 16, 2020, plaintiff filed a three-count complaint against defendant. The complaint alleged that defendant “is using invalid rules to regulate the conduct of [plaintiff] and [plaintiff’s] grantees.” Specifically, count I alleged that the Department’s “Area Agencies on

Aging Policies and Procedures Manual” (Manual), which comprises 12 sections and approximately 400 pages, is invalid because it was not adopted pursuant to the Act’s rulemaking provisions (5 ILCS 100/art. 5 (West 2020)). Similarly, counts II and III alleged that section 1000

of the Manual, titled “Evaluation, Monitoring and Special Reviews” (Monitoring Policy), and the Department’s “Area Agency on Aging Meetings Transparency Policy” (Transparency Policy), respectively, are invalid rules because they were not adopted pursuant to the Act’s rulemaking

provisions. The Monitoring Policy “describes the purpose, approach and procedures for conducting risk assessments, evaluations, monitoring activities and special reviews of the [AAAs] and the [AAAs’] evaluation of subgrantees and subcontractors.” The Transparency Policy provides

that all board and advisory council meetings of AAAs “shall be held in a transparent manner in facilities which are readily accessible and large enough to accommodate the public and applicable

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Department personnel,” and it requires that the meetings comply with certain provisions

enumerated therein. Plaintiff requested an order stating that the entire Manual is invalid, the Monitoring Policy is invalid, and the Transparency Policy is invalid. Plaintiff attached to its complaint copies of the Monitoring Policy and the Transparency Policy. Other than the Monitoring

Policy, no other portions of the Manual were appended to the complaint.

¶ 14 On April 2, 2020, defendant filed a motion to dismiss plaintiff’s complaint, pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2020) (allowing motions with respect to

pleadings under section 2-615 of the Code (735 ILCS 5/2-615 (West 2020)) and motions for involuntary dismissal or other relief under section 2-619 of the Code (735 ILCS 5/2-619 (West

2020)) to be filed together as a single motion)). Defendant argued that count I of the complaint should be dismissed as untimely, pursuant to section 2-619(a)(5) of the Code (735 ILCS 5/2-

619(a)(5) (West 2020)), because all but certain portions of the Monitoring Policy became effective more than two years prior to the filing of the complaint. See 5 ILCS 100/5-35(b) (West 2020)

(providing that any “proceeding to contest any rule on the ground of non-compliance with the procedural requirements of [the Act] must be commenced within 2 years from the effective date of the rule”). Defendant also contended that, under section 2-619(a)(9) of the Code (735 ILCS 5/2-

619(a)(9) (West 2020)), count I should be dismissed with regard to section 900 of the Manual, pursuant to the Act’s contract exception, because section 900 is explicitly incorporated in a 2018 grant agreement between plaintiff and the Department. See 5 ILCS 100/5-35(c) (West 2020)

(providing that the Act’s rulemaking provisions “do not apply to a matter relating solely to agency management or personnel practices or to public property, loans, or contracts”). Defendant argued that count II should be partially dismissed as untimely, pursuant to section 2-619(a)(5) of the Code

(735 ILCS 5/2-619(a)(5) (West 2020)), because only certain portions of the Monitoring Policy

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2020). Defendant argued that count III should be dismissed pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2020)), because the Transparency Policy is not part of the Manual and is not a policy or rule of the Department.

¶ 15 Defendant also argued that counts I and II of the complaint should be dismissed pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2020)). With respect to count I, defendant argued that plaintiff’s blanket allegation that the entire Manual is a rule is conclusory and not supported by any specific allegations or exhibits. Moreover, citing the Act’s definition of “rule”

(5 ILCS 100/1-70 (West 2020)) and section 5.02 of the Illinois Act on the Aging (20 ILCS 105/5.02

(West 2020) (providing that the Act does not apply to the Department with respect to the adoption of “any rule required by federal law in connection with which the Department is precluded by law

from exercising any discretion”)), defendant contended that the Manual was not subject to the Act’s rulemaking provisions because it “simply provides a synthesized restatement of the requirements of statutes and regulations for the benefit of the Department and the AAAs.”

Similarly, with respect to count II, defendant argued that the Monitoring Policy does not fall within the Act’s definition of a “rule” because it merely “summarizes the legal requirements of other statutes and regulations and directs the Department on how to carry out its obligations under those laws.” See 5 ILCS 100/1-70 (West 2020).

¶ 16 Attached to defendant’s motion to dismiss were various documents, including the entire

Manual and a “verification” from Jose Jimenez, a supervisor with the Department. See 735 ILCS

5/1-109 (West 2020) (providing for “[v]erification by certification”). In the verification, Jimenez

stated that the Department does not have a transparency policy. He explained that in 2018 the Department proposed the Transparency Policy at issue as an addition to the Manual. However, the 210241

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Transparency Policy “was never implemented or added to the *** Manual” and “is not an official policy of the Department.” Jimenez further stated that the Department does not require AAAs to comply with the requirements of the Transparency Policy.

¶ 17 On July 28, 2020, the trial court held a hearing on defendant’s motion to dismiss. Following the hearing, the court dismissed counts I and II without prejudice, based on the Act’s limitations

period. The court offered plaintiff the opportunity to replead any challenges to portions of the Manual published “within the statute of limitations” and directed plaintiff’s counsel to “parse out” exactly which provisions of the Manual it was challenging in any amended complaint. With respect to count III, the court acknowledged that defendant “contest[ed] the facts,” but it allowed that “on a 2-619 motion you can contest easily proven facts by way of affidavit.” The court dismissed count

III with prejudice because the Department showed that the Transparency Policy never took effect and plaintiff did not offer a “counter affidavit to suggest that [the Department is] requiring people

to follow the Transparency Policy.” On July 30, 2020, the trial court entered a written order in accordance with its oral pronouncements.

¶ 18 D. Plaintiff’s First Amended Complaint

¶ 19 Plaintiff subsequently filed a motion for leave to file an amended complaint, which the trial court granted. To that end, on August 12, 2020, plaintiff filed a six-count, first amended complaint.

The amended complaint alleged that six different “rules” enacted by the Department were invalid

“because they have not been adopted pursuant to the *** Act.” Plaintiff therefore concluded that the policies were invalid. Counts I and II pertained to the entire Manual and the Monitoring Policy

(section 1000 of the Manual), respectively. Count III pertained to an e-mail issued by the Department on August 5, 2020, in response to the COVID-19 pandemic (Tracking E-mail). The Tracking E-mail required AAAs to track and report certain information about senior centers, on a

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spreadsheet provided by the Department, including (1) planning and service area, (2) county, (3) physical site name, (4) physical site address, (5) phone number, (6) operating hours, (7) date reopened after closures mandated by the response, (8) date reclosed due to COVID-19 (if applicable), and (9) subsequent reopening date (if applicable). Count IV related to a July 2020 memorandum from the Ombudsman, requiring each AAA to complete an “Organizational Conflict of Interest Form” on an annual basis (Conflict-of-Interest Form). Count V pertained to a July 2019 document titled “Mandatory Medicaid Application and Redetermination for Community Care

Program Participants” (Medicaid Policy). The Medicaid Policy explained that participants in the Community Care Program were “no longer *** exempt from applying for Medicaid,” so Care

Coordination Units (CCUs) should verify whether a participant was receiving Medicaid benefits or had applied for them. The Medicaid Policy also described the procedures for determining a

participant’s eligibility. Finally, count VI pertained to a July 2020 memorandum from the Department’s Office of Adult Protective Services regarding a “Report of Substantiation [(ROS)]

Policy Clarification” (ROS Memorandum). The ROS Memorandum asked the State’s Adult

Protective Services provider agencies, in preparing final investigative reports of abuse, neglect, exploitation, or self-neglect, to confirm what “organization *** is providing care coordination

services” to the alleged victim. The ROS Memorandum added that the ROS “should be sent to the organization coordinating care for the individual at the time of substantiation” and that “it is the responsibility of the [Adult Protective Services] provider to attempt to share the ROS with the care coordination agency that is actively involved with the individual.” Plaintiff attached to its first

amended complaint the Monitoring Policy, the Tracking E-mail (but not the spreadsheet), the Conflict-of-Interest Form and memorandum, the Medicaid Policy, and the ROS Memorandum.

- 10 - 2022 IL App (2d) 210234 Other than the Monitoring Policy, no other provisions of the Manual were appended to the first amended complaint. ¶ 20 On September 23, 2020, defendant filed a combined motion to dismiss plaintiff’s first amended complaint, under section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2020)). Pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2020)), defendant argued, the entire complaint should be dismissed because the Act’s contracts and agency- management exceptions apply. See 5 ILCS 100/5-35(c) (West 2020) (providing that “[t]he rulemaking procedures *** do not apply to a matter relating solely to agency management or personnel practices or to public property, loans, or contracts”). Defendant further argued that, pursuant to section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West 2020)), counts I and II of the complaint should be partially dismissed as time-barred. See 5 ILCS 100/5-35(b) (West 2020) (providing that any “proceeding to contest any rule on the ground of noncompliance with the procedural requirements of this [Act] must be commenced within 2 years from the effective date of the rule”). Defendant next argued that counts V and VI should be dismissed pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2020)), based on a lack of standing. Specifically, defendant argued that neither the Medicaid Policy nor the ROS Memorandum applied to plaintiff. Defendant explained that the Medicaid Policy is directed at CCUs and it affects the CCUs and the Community Care Program participants. The ROS Memorandum is directed at Adult Protective Service provider agencies. Since neither policy is directed at AAAs, defendant maintained, plaintiff had no standing to challenge those policies. ¶ 21 Pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2020)), defendant argued that count I failed to state a claim for declaratory relief because it identified no specific provisions of the Manual that constituted rulemaking and the Department had the general authority to publish - 11 - 2022 IL App (2d) 210234 a manual summarizing the laws it administers. As for counts II, III, IV, and VI, defendant argued that each of the forms, correspondence, and publications challenged were either prescriptions of standardized forms or descriptions of Department or AAA duties under federal or state law, not new rules that were required to undergo notice-and-comment rulemaking. See 5 ILCS 100/1-70 (West 2020) (excluding from the definition of a “rule” “statements concerning only the internal management of an agency and not affecting private rights or procedures available to persons or entities outside the agency,” “informal advisory rulings,” “intra-agency memoranda,” and “the prescription of standardized forms”); 20 ILCS 105/5.02 (West 2020) (“Section 5-35 of the [Act] relating to procedures for rule-making does not apply to the adoption of any rule required by federal law in connection with which the Department is precluded by law from exercising any discretion”). Defendant attached various documents to her motion to dismiss, including a complete copy of the Manual. ¶ 22 In its response to defendant’s motion to dismiss, plaintiff argued that it had standing to pursue counts V and VI because, inter alia, (1) the Act does not have an explicit standing requirement, (2) plaintiff has “special legal status” as an advocate that authorizes it to “bring litigation on behalf of older adults for the Department’s illegal conduct,” and (3) it contracts with the Department to manage the programs at issue. With respect to defendant’s statute of limitations defense, plaintiff argued that a rule that did not go through the Act’s rulemaking procedure had no effective date and, thus, could be challenged at any time. Plaintiff also argued that there were questions of fact surrounding the effective dates of the Manual’s various sections, attaching an affidavit from its executive director stating that he was “disputing the effective dates for policies contained in the Manual,” because there was no evidence of when or how the Manual was published. In response to the section 2-615 motion, plaintiff argued that the Department’s various - 12 - 2022 IL App (2d) 210234 actions affected outside organizations and “any Department statement that affects outside organizations must be approved through” the Act’s rulemaking provisions. As for the exception for rules required by federal law, plaintiff argued that the Department exercised discretion in publishing the Monitoring Policy, because that section did not recite the text of the federal monitoring requirements verbatim. Plaintiff attached a copy of the Tracking E-mail spreadsheet to its response. ¶ 23 While defendant’s motion to dismiss the first amended complaint was pending, plaintiff filed a motion to add Kelly Richards, the Ombudsman, as a defendant to its action because she had sent an e-mail reminding plaintiff to complete the Conflict-of-Interest Form. Citing sections 2-405 and 2-406 of the Code (735 ILCS 5/2-405, 2-406 (West 2020)), plaintiff argued that the Ombudsman was a necessary party because she was “threatening sanctions” against plaintiff for not completing the Conflict-of-Interest Form. Plaintiff further asserted that defendant could not represent the Ombudsman because the Department’s interests were adverse to hers. On October 14, 2020, the trial court held a hearing on plaintiff’s motion and denied it. ¶ 24 In a memorandum opinion and order dated April 7, 2021 (but incorrectly file stamped April 8, 2020), the trial court granted defendant’s motion to dismiss plaintiff’s first amended complaint. The court agreed that plaintiff lacked standing to bring counts V and VI, because those counts challenged policies that applied only to CCUs and Adult Protective Service providers. The court rejected plaintiff’s claim that it had standing because the Act does not have an explicit standing requirement, explaining that the fact that a statute does not expressly address standing does not mean that the standing doctrine is inapplicable. The court also rejected plaintiff’s claim that it had standing via its status as an advocate for older adults, noting that the statutes and rules giving plaintiff such status say nothing about its standing to file lawsuits challenging rules that did not - 13 - 2022 IL App (2d) 210234 apply to it. Finally, the court determined that the fact that plaintiff manages the programs at issue does not make it subject to the directives. The court explained that plaintiff is not the entity that must comply with the directives and plaintiff has not alleged any action that it must undertake to comply with the directives, nor has it alleged any harm that it would suffer if it did not abide by the directives. Therefore, the court dismissed counts V and VI with prejudice pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2020)). ¶ 25 As for counts I through IV, the court granted defendant’s section 2-615 motion (see 735 ILCS 5/2-615 (West 2020)) and dismissed those counts with prejudice, concluding that none of the challenged actions of the Department required rulemaking. The court first noted that, in count I, plaintiff identified no specific provisions of the Manual that rose to the level of a rule under the Act. The court rejected plaintiff’s claim that the “entire [M]anual” had to go through notice-and- comment rulemaking, because, rather than implementing new policies, it summarized existing laws. As for count II, the court held that the challenged portions of the Monitoring Policy simply summarized existing federal and state rules governing the Department’s and plaintiff’s monitoring responsibilities. With respect to count III, the court concluded that compliance with the Tracking E-mail constituted “a minor administrative task” that was “well within the scope of an AAA’s duties” to monitor the programs in its service area. Finally, the court dismissed count IV, concluding that the Ombudsman’s request that plaintiff complete the Conflict-of-Interest Form was not a rule, because federal and state law required the Ombudsman to identify and remedy conflicts of interest. ¶ 26 Plaintiff subsequently filed a notice of appeal (which it later amended) from (1) the trial court’s April 7, 2021, memorandum opinion and order, which dismissed with prejudice counts I through VI of its first amended complaint, (2) the trial court’s July 30, 2020, order dismissing with - 14 - 2022 IL App (2d) 210234 prejudice count III of plaintiff ’s original complaint, and (3) the “[o]rders taken from the Report of Proceedings before the [trial court] on July 28, 2020.” ¶ 27 II. ANALYSIS ¶ 28 On appeal, plaintiff argues that the trial court improperly dismissed with prejudice count III of its original complaint as well as all six counts in its first amended complaint. In general, plaintiff asserts that the trial court “improperly construed facts against [it] and made mistakes of law.” Prior to discussing these contentions, we address the appropriate standard of review. ¶ 29 A. Standard of Review ¶ 30 Defendant moved to dismiss plaintiff’s complaints pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2020)). Section 2-619.1 provides that motions with respect to pleadings pursuant to sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 2020)) may be filed together as a single motion. 735 ILCS 5/2-619.1 (West 2020); Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338 Ill. App. 3d 156, 164 (2003). ¶ 31 A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based on defects apparent on its face. 735 ILCS 5/2-615 (West 2020); Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006); Collins v. Bartlett Park District, 2013 IL App (2d) 130006, ¶ 26. In ruling on a section 2-615 motion to dismiss, all well-pleaded facts and all reasonable inferences that may be drawn from those facts are accepted as true. Rockford Memorial Hospital v. Havrilesko, 368 Ill. App. 3d 115, 120 (2006). However, a plaintiff may not rely on mere conclusions of law or fact unsupported by specific factual allegations. Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009). The critical inquiry is whether the allegations of the complaint are sufficient to establish a cause of action under which relief may be granted. Malinksi v. Grayslake Community High School District 127, 2014 IL App (2d) 130685, ¶ 6. Thus, only those facts apparent from the - 15 - 2022 IL App (2d) 210234 face of the pleadings, documents attached to a complaint (including exhibits, depositions, and affidavits), matters of which the court can take judicial notice, and judicial admissions in the record may be considered in ruling on a section 2-615 motion. Bruss v. Przybylo, 385 Ill. App. 3d 399, 405 (2008); Brock v. Anderson Road Ass’n, 287 Ill. App. 3d 16, 21 (1997). A court may also consider documents attached to a motion to dismiss where the plaintiff put their contents at issue but failed to attach them to the complaint. See Perkaus v. Chicago Catholic High School Athletic League, 140 Ill. App. 3d 127, 134 (1986). Where allegations made in the body of the complaint conflict with facts disclosed in the exhibits, the exhibits control and the allegations will not be taken as true in evaluating the sufficiency of the complaint. Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414, 430-31 (2004). ¶ 32 In contrast, a motion to dismiss based on section 2-619 of the Code (735 ILCS 5/2-619 (West 2020)) admits the legal sufficiency of the complaint but raises defects, defenses, or other affirmative matter, appearing on the face of the complaint or established by external submissions, that defeat the claim. Orlak v. Loyola University Health System, 228 Ill. 2d 1, 6-7 (2007); Jaros v. Village of Downers Grove, 2020 IL App (2d) 180654, ¶ 35; Malinksi, 2014 IL App (2d) 130685, ¶ 6. An “affirmative matter” for the purposes of a section 2-619 motion is something in the nature of a defense that negates the cause of action completely or refutes crucial conclusions of law or conclusions of material fact contained in or inferred from the complaint. Cwikla v. Sheir, 345 Ill. App. 3d 23, 29 (2003). The purpose of section 2-619 is to afford litigants a means to dispose of issues of law and easily proven issues of fact at the outset of litigation. Brummel v. Grossman, 2018 IL App (1st) 162540, ¶ 22. ¶ 33 In considering a combined motion to dismiss pursuant to section 2-619.1, we accept all well-pleaded facts in the complaint as true, drawing all reasonable inferences from these facts in - 16 - 2022 IL App (2d) 210234 favor of the nonmoving party. Marshall, 222 Ill. 2d at 429; Malinksi, 2014 IL App (2d) 130685, ¶ 6. Our review under either section 2-615 or section 2-619 of the Code is de novo. Hadley v. Doe, 2015 IL 118000, ¶ 29; Malinksi, 2014 IL App (2d) 130685, ¶ 6. Further, we may affirm the trial court’s judgment on any basis in the record, regardless of the court’s reasoning. O’Callaghan v. Satherlie, 2015 IL App (1st) 142152, ¶ 17. ¶ 34 B. The Original Complaint ¶ 35 We first address plaintiff’s challenge to the dismissal of count III of plaintiff’s original complaint. That count alleged that the Transparency Policy is an invalid administrative rule under the Act. As noted earlier, the trial court dismissed count III with prejudice, concluding that the Department showed that the Transparency Policy never took effect and noting that plaintiff did not offer a “counter affidavit to suggest that [the Department is] requiring people to follow the Transparency Policy.” Plaintiff argues that the dismissal of this count should be vacated because the trial court improperly construed facts against it. See Marshall, 222 Ill. 2d at 429 (noting that, in reviewing the sufficiency of a complaint, the court “accept[s] as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts” and “construe[s] the allegations in the complaint in the light most favorable to the plaintiff”). In addition, plaintiff argues that the trial court committed an error of law by relying on Jimenez’s verification “to dispute facts.” Plaintiff has forfeited review of this issue. ¶ 36 In Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 153 (1983), the supreme court set forth the circumstances under which a party who files an amended complaint forfeits any objection to the trial court’s ruling on any former complaints, or certain counts therein. The court explained that, “ ‘[w]here an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record for most purposes, - 17 - 2022 IL App (2d) 210234 being in effect abandoned and withdrawn.’ ” Foxcroft Townhome Owners Ass’n, 96 Ill. 2d at 154 (quoting Bowman v. County of Lake, 29 Ill. 2d 268, 272 (1963)). There are several methods by which a plaintiff may avoid the consequences of the Foxcroft rule. Childs v. Pinnacle Health Care, LLC, 399 Ill. App. 3d 167, 176 (2010). First, the plaintiff may stand on the dismissed pleading and file an appeal. Du Page Aviation Corp., Flight Services, Inc. v. Du Page Airport Authority, 229 Ill. App. 3d 793, 800 (1992). Second, the plaintiff may file an amended complaint realleging, incorporating by reference, or referring to the claims set forth in the prior complaint. Doe v. Roe, 289 Ill. App. 3d 116, 119 (1997). Third, the plaintiff may perfect an appeal from an order dismissing fewer than all of the counts of his or her complaint prior to filing an amended pleading that neither refers to nor adopts the dismissed counts. Brown Leasing, Inc. v. Stone, 284 Ill. App. 3d 1035, 1043-44 (1996). ¶ 37 In this case, plaintiff did not pursue any of these three exceptions to the Foxcroft rule. It did not stand on the dismissed pleading and file an appeal. Instead, it requested permission to file an amended complaint. Further, plaintiff’s amended complaint did not refer to or adopt count III of the prior pleading. See Tabora v. Gottlieb Memorial Hospital, 279 Ill. App. 3d 108, 114 (1996) (noting that “[a] simple paragraph or footnote in the amended pleadings notifying defendants and the court that plaintiff was preserving the dismissed portions of his former complaints for appeal” is sufficient to protect against forfeiture under Foxcroft). Additionally, plaintiff did not appeal from the dismissal of count III prior to filing an amended pleading that neither refers to nor adopts the dismissed counts. Rather, it appealed the order dismissing count III of its initial complaint after the trial court ruled on the amended complaint. Given these circumstances, plaintiff has forfeited its challenge to the dismissal of count III of the original complaint. See Cwikla, 345 Ill. App. 3d at 27-28 (holding, sua sponte, that, pursuant to the Foxcroft rule, the plaintiffs forfeited their claim - 18 - 2022 IL App (2d) 210234 where they failed to reallege it in an amended pleading); see also Bonhomme v. St. James, 2012 IL 112393, ¶¶ 16-31 (holding that the plaintiff abandoned claims that were dismissed with prejudice and were not “referenced or incorporated” in subsequent amended complaint). 1 ¶ 38 Forfeiture notwithstanding, we would affirm the dismissal of count III of the original complaint. Defendant moved to dismiss count III of the original complaint pursuant to section 2- 619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2020)). That provision provides for involuntary dismissal where “the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2020). Although section 2-619 is not the proper method to contest the truth of a factual allegation (Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 51), it does allow the movant to seek dismissal based on easily proven issues of fact (United City of Yorkville v. Fidelity & Deposit Co. of Maryland, 2019 IL App (2d) 180230, ¶ 126; Reynolds, 2013 IL App (4th) 120139, ¶ 30). However, those facts must relate to the affirmative matter that is the asserted basis for the dismissal. United City of Yorkville, 2019 IL App (2d) 180230, ¶ 126; Reynolds, 2013 IL App (4th) 120139, ¶ 30. ¶ 39 “The phrase ‘affirmative matter’ encompasses any defense other than a negation of the essential allegations of the plaintiff’s cause of action.” Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993); see also Cwikla, 345 Ill. App. 3d at 29 (noting that “affirmative matter” for the purposes of a section 2-619 motion is something in the nature of a defense that negates the cause of action completely or refutes crucial conclusions of law or