Sen. Michael W. Frerichs

Filed: 3/13/2013

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 47

2    AMENDMENT NO. ______. Amend Senate Bill 47 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Illinois Public Aid Code is amended by
5changing Section 11-22 as follows:
 
6    (305 ILCS 5/11-22)  (from Ch. 23, par. 11-22)
7    Sec. 11-22. Charge upon claims and causes of action for
8injuries. The Illinois Department shall have a charge upon all
9claims, demands and causes of action for injuries to an
10applicant for or recipient of (i) financial aid under Articles
11III, IV, and V, (ii) health care benefits provided under the
12Covering ALL KIDS Health Insurance Act, or (iii) health care
13benefits provided under the Veterans' Health Insurance Program
14Act or the Veterans' Health Insurance Program Act of 2008 for
15the total amount of medical assistance provided the recipient
16from the time of injury to the date of recovery upon such

 

 

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1claim, demand or cause of action. In addition, if the applicant
2or recipient was employable, as defined by the Department, at
3the time of the injury, the Department shall also have a charge
4upon any such claims, demands and causes of action for the
5total amount of aid provided to the recipient and his
6dependents, including all cash assistance and medical
7assistance only to the extent includable in the claimant's
8action, from the time of injury to the date of recovery upon
9such claim, demand or cause of action. Any definition of
10"employable" adopted by the Department shall apply only to
11persons above the age of compulsory school attendance.
12    If the injured person was employable at the time of the
13injury and is provided aid under Articles III, IV, or V and any
14dependent or member of his family is provided aid under Article
15VI, or vice versa, both the Illinois Department and the local
16governmental unit shall have a charge upon such claims, demands
17and causes of action for the aid provided to the injured person
18and any dependent member of his family, including all cash
19assistance, medical assistance and food stamps, from the time
20of the injury to the date of recovery.
21    "Recipient", as used herein, means (i) in the case of
22financial aid provided under this Code, the grantee of record
23and any persons whose needs are included in the financial aid
24provided to the grantee of record or otherwise met by grants
25under the appropriate Article of this Code for which such
26person is eligible, (ii) in the case of health care benefits

 

 

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1provided under the Covering ALL KIDS Health Insurance Act, the
2child to whom those benefits are provided, and (iii) in the
3case of health care benefits provided under the Veterans'
4Health Insurance Program Act or the Veterans' Health Insurance
5Program Act of 2008, the veteran to whom benefits are provided.
6    In each case, the notice shall be served by certified mail
7or registered mail, or by facsimile or electronic messaging
8when requested by the party or parties against whom the
9applicant or recipient has a claim, demand, or cause of action,
10upon the party or parties against whom the applicant or
11recipient has a claim, demand or cause of action. The notice
12shall claim the charge and describe the interest the Illinois
13Department, the local governmental unit, or the county, has in
14the claim, demand, or cause of action. The charge shall attach
15to any verdict or judgment entered and to any money or property
16which may be recovered on account of such claim, demand, cause
17of action or suit from and after the time of the service of the
18notice.
19    On petition filed by the Illinois Department, or by the
20local governmental unit or county if either is claiming a
21charge, or by the recipient, or by the defendant, the court, on
22written notice to all interested parties, may adjudicate the
23rights of the parties and enforce the charge. The court may
24approve the settlement of any claim, demand or cause of action
25either before or after a verdict, and nothing in this Section
26shall be construed as requiring the actual trial or final

 

 

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1adjudication of any claim, demand or cause of action upon which
2the Illinois Department, the local governmental unit or county
3has charge. The court may determine what portion of the
4recovery shall be paid to the injured person and what portion
5shall be paid to the Illinois Department, the local
6governmental unit or county having a charge against the
7recovery. In making this determination, the court shall conduct
8an evidentiary hearing and shall consider competent evidence
9pertaining to the following matters:
10        (1) the amount of the charge sought to be enforced
11    against the recovery when expressed as a percentage of the
12    gross amount of the recovery; the amount of the charge
13    sought to be enforced against the recovery when expressed
14    as a percentage of the amount obtained by subtracting from
15    the gross amount of the recovery the total attorney's fees
16    and other costs incurred by the recipient incident to the
17    recovery; and whether the Department, unit of local
18    government or county seeking to enforce the charge against
19    the recovery should as a matter of fairness and equity bear
20    its proportionate share of the fees and costs incurred to
21    generate the recovery from which the charge is sought to be
22    satisfied;
23        (2) the amount, if any, of the attorney's fees and
24    other costs incurred by the recipient incident to the
25    recovery and paid by the recipient up to the time of
26    recovery, and the amount of such fees and costs remaining

 

 

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1    unpaid at the time of recovery;
2        (3) the total hospital, doctor and other medical
3    expenses incurred for care and treatment of the injury to
4    the date of recovery therefor, the portion of such expenses
5    theretofore paid by the recipient, by insurance provided by
6    the recipient, and by the Department, unit of local
7    government and county seeking to enforce a charge against
8    the recovery, and the amount of such previously incurred
9    expenses which remain unpaid at the time of recovery and by
10    whom such incurred, unpaid expenses are to be paid;
11        (4) whether the recovery represents less than
12    substantially full recompense for the injury and the
13    hospital, doctor and other medical expenses incurred to the
14    date of recovery for the care and treatment of the injury,
15    so that reduction of the charge sought to be enforced
16    against the recovery would not likely result in a double
17    recovery or unjust enrichment to the recipient;
18        (5) the age of the recipient and of persons dependent
19    for support upon the recipient, the nature and permanency
20    of the recipient's injuries as they affect not only the
21    future employability and education of the recipient but
22    also the reasonably necessary and foreseeable future
23    material, maintenance, medical, rehabilitative and
24    training needs of the recipient, the cost of such
25    reasonably necessary and foreseeable future needs, and the
26    resources available to meet such needs and pay such costs;

 

 

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1        (6) the realistic ability of the recipient to repay in
2    whole or in part the charge sought to be enforced against
3    the recovery when judged in light of the factors enumerated
4    above.
5    The burden of producing evidence sufficient to support the
6exercise by the court of its discretion to reduce the amount of
7a proven charge sought to be enforced against the recovery
8shall rest with the party seeking such reduction.
9    The court may reduce and apportion the Illinois
10Department's lien proportionate to the recovery of the
11claimant. The court may consider the nature and extent of the
12injury, economic and noneconomic loss, settlement offers,
13comparative negligence as it applies to the case at hand,
14hospital costs, physician costs, and all other appropriate
15costs. The Illinois Department shall pay its pro rata share of
16the attorney fees based on the Illinois Department's lien as it
17compares to the total settlement agreed upon. This Section
18shall not affect the priority of an attorney's lien under the
19Attorneys Lien Act. The charges of the Illinois Department
20described in this Section, however, shall take priority over
21all other liens and charges existing under the laws of the
22State of Illinois with the exception of the attorney's lien
23under said statute.
24    Whenever the Department or any unit of local government has
25a statutory charge under this Section against a recovery for
26damages incurred by a recipient because of its advancement of

 

 

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1any assistance, such charge shall not be satisfied out of any
2recovery until the attorney's claim for fees is satisfied,
3irrespective of whether or not an action based on recipient's
4claim has been filed in court.
5    This Section shall be inapplicable to any claim, demand or
6cause of action arising under (a) the Workers' Compensation Act
7or the predecessor Workers' Compensation Act of June 28, 1913,
8(b) the Workers' Occupational Diseases Act or the predecessor
9Workers' Occupational Diseases Act of March 16, 1936; and (c)
10the Wrongful Death Act.
11(Source: P.A. 94-693, eff. 7-1-06; 94-816, eff. 5-30-06;
1295-755, eff. 7-25-08.)
 
13    Section 99. Effective date. This Act takes effect upon
14becoming law.".