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