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Public Act 098-0073
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| SB0047 Enrolled | LRB098 01531 KTG 31535 b |
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AN ACT concerning public aid.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Illinois Public Aid Code is amended by |
changing Section 11-22 as follows:
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(305 ILCS 5/11-22) (from Ch. 23, par. 11-22)
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Sec. 11-22. Charge upon claims and causes of action for |
injuries. The Illinois Department shall have a charge upon all |
claims, demands and
causes of action for injuries to an |
applicant for or recipient of (i)
financial aid under Articles |
III, IV, and V, (ii) health care benefits provided under the |
Covering ALL KIDS Health Insurance Act, or (iii) health care |
benefits provided under the Veterans' Health Insurance Program |
Act or the Veterans' Health Insurance Program Act of 2008 for |
the total
amount of
medical assistance provided the recipient |
from the time of injury to the
date of recovery upon such |
claim, demand or cause of action. In addition, if
the applicant |
or recipient was employable, as defined by the Department, at
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the time of the injury, the Department shall also have a charge |
upon any
such claims, demands and causes of action for the |
total amount of aid
provided to the recipient and his
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dependents, including all cash assistance and medical |
assistance
only to the extent includable in the claimant's |
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action, from the
time of injury to the date of recovery upon |
such
claim, demand or cause of action. Any definition of |
"employable"
adopted by the Department shall apply only to |
persons above the age of
compulsory school attendance.
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If the injured person was employable at the time of the |
injury and is
provided aid under Articles III, IV, or V and any |
dependent or
member of his family is provided aid under Article |
VI, or vice versa,
both the Illinois Department and the local |
governmental unit shall have
a charge upon such claims, demands |
and causes of action for the aid
provided to the injured person |
and any
dependent member of his family, including all cash |
assistance, medical
assistance and food stamps, from the time |
of the injury to the date
of recovery.
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"Recipient", as used herein, means (i) in the case of |
financial aid provided under this Code, the grantee of record |
and any
persons whose needs are included in the financial aid |
provided to the
grantee of record or otherwise met by grants |
under the appropriate
Article of this Code for which such |
person is eligible, (ii) in the case of health care benefits |
provided under the Covering ALL KIDS Health Insurance Act, the |
child to whom those benefits are provided, and (iii) in the |
case of health care benefits provided under the Veterans' |
Health Insurance Program Act or the Veterans' Health Insurance |
Program Act of 2008, the veteran to whom benefits are provided.
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In each case, the notice shall be served by certified mail |
or
registered mail, or by facsimile or electronic messaging |
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when requested by the party or parties against whom the |
applicant or recipient has a claim, demand, or cause of action, |
upon the party or parties against whom the applicant or
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recipient has a claim, demand or cause of action. The notice |
shall
claim the charge and describe the interest the Illinois |
Department, the
local governmental unit, or the county, has in |
the claim, demand, or
cause of action. The charge shall attach |
to any verdict or judgment
entered and to any money or property |
which may be recovered on account
of such claim, demand, cause |
of action or suit from and after the time
of the service of the |
notice.
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On petition filed by the Illinois Department, or by the |
local
governmental unit or county if either is claiming a |
charge, or by the
recipient, or by the defendant, the court, on |
written notice to all
interested parties, may adjudicate the |
rights of the parties and enforce
the charge. The court may |
approve the settlement of any claim, demand
or cause of action |
either before or after a verdict, and nothing in this
Section |
shall be construed as requiring the actual trial or final
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adjudication of any claim, demand or cause of action upon which |
the
Illinois Department, the local governmental unit or county |
has charge.
The court may determine what portion of the |
recovery shall be paid to
the injured person and what portion |
shall be paid to the Illinois
Department, the local |
governmental unit or county having a charge
against the |
recovery.
In making this determination, the court shall conduct |
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an evidentiary hearing
and shall consider competent evidence |
pertaining
to the following matters:
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(1) the amount of the charge sought to be enforced |
against the recovery
when expressed as a percentage of the |
gross amount of the recovery; the
amount of the charge |
sought to be enforced against the recovery when expressed
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as a percentage of the amount obtained by subtracting from |
the gross amount
of the recovery the total attorney's fees |
and other costs incurred by the
recipient incident to the |
recovery; and whether the Department, unit of
local |
government or county seeking to enforce the charge against |
the recovery
should as a matter of fairness and equity bear |
its proportionate share of
the fees and costs incurred to |
generate the recovery from which the charge
is sought to be |
satisfied;
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(2) the amount, if any, of the attorney's fees and |
other costs incurred
by the recipient incident to the |
recovery and paid by the recipient up to the
time of |
recovery, and the amount of such fees and costs remaining |
unpaid
at the time of recovery;
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(3) the total hospital, doctor and other medical |
expenses incurred for
care and treatment of the injury to |
the date of recovery therefor, the portion
of such expenses |
theretofore paid by the recipient, by insurance provided
by |
the recipient, and by the Department, unit of local |
government and county
seeking to enforce a charge against |
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the recovery, and the amount of such
previously incurred |
expenses which remain unpaid at the time of recovery
and by |
whom such incurred, unpaid expenses are to be paid;
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(4) whether the recovery represents less than |
substantially full
recompense
for the injury and the |
hospital, doctor and other medical expenses incurred
to the |
date of recovery for the care and treatment of the injury, |
so that
reduction of the charge sought to be enforced |
against the recovery would
not likely result in a double |
recovery or unjust enrichment to the recipient;
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(5) the age of the recipient and of persons dependent |
for support upon
the recipient, the nature and permanency |
of the recipient's injuries as
they affect not only the |
future employability and education of the recipient
but |
also the reasonably necessary and foreseeable future |
material, maintenance,
medical, rehabilitative and |
training needs of the recipient, the cost of
such |
reasonably necessary and foreseeable future needs, and the |
resources
available to meet such needs and pay such costs;
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(6) the realistic ability of the recipient to repay in |
whole or in part
the charge sought to be enforced against |
the recovery when judged in light
of the factors enumerated |
above.
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The burden of producing evidence sufficient to support the |
exercise by
the court of its discretion to reduce the amount of |
a proven charge sought
to be enforced against the recovery |
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shall rest with the party seeking such reduction.
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The court may reduce and apportion the Illinois
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Department's lien proportionate to the recovery of the |
claimant. The court may
consider the nature and extent of the |
injury, economic and noneconomic
loss, settlement offers, |
comparative negligence as it applies to the case
at hand, |
hospital costs, physician costs, and all other appropriate |
costs.
The Illinois Department shall pay its pro rata share of |
the attorney fees
based on the Illinois Department's lien as it |
compares to the total
settlement agreed upon. This Section |
shall not affect the priority of an
attorney's lien under the |
Attorneys Lien Act. The charges of
the Illinois Department |
described in this Section, however, shall take
priority over |
all other liens and charges existing under the laws of the
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State of Illinois with the exception of the attorney's lien |
under said statute.
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Whenever the Department or any unit of local government
has |
a statutory charge under this Section against a recovery for |
damages
incurred by a recipient because of its advancement of |
any assistance, such
charge shall not be satisfied out of any |
recovery until the attorney's claim
for fees is satisfied, |
irrespective of whether or not an action based on
recipient's |
claim has been filed in court.
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This Section shall be inapplicable to any claim, demand or |
cause of
action arising under (a) the Workers' Compensation Act |
or the predecessor
Workers' Compensation Act
of
June 28, 1913, |