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| Public Act 098-0073 | ||||
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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 | ||||
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 | ||
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 | ||
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 | ||
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 | ||
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, | ||
(b) the Workers' Occupational Diseases Act or the predecessor
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Workers' Occupational
Diseases Act of March 16, 1936; and (c) | ||
the Wrongful Death Act.
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(Source: P.A. 94-693, eff. 7-1-06; 94-816, eff. 5-30-06; | ||
95-755, eff. 7-25-08.)
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Section 99. Effective date. This Act takes effect upon | ||
becoming law.
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