Full Text of SB0047 98th General Assembly
SB0047sam001 98TH GENERAL ASSEMBLY | 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 | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Illinois Public Aid Code is amended by | 5 | | changing 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 | 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 |
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| 1 | | claim, demand or cause of action. In addition, if
the applicant | 2 | | or recipient was employable, as defined by the Department, at
| 3 | | the time of the injury, the Department shall also have a charge | 4 | | upon any
such claims, demands and causes of action for the | 5 | | total amount of aid
provided to the recipient and his
| 6 | | dependents, including all cash assistance and medical | 7 | | assistance
only to the extent includable in the claimant's | 8 | | action, from the
time of injury to the date of recovery upon | 9 | | such
claim, demand or cause of action. Any definition of | 10 | | "employable"
adopted by the Department shall apply only to | 11 | | persons above the age of
compulsory school attendance.
| 12 | | If the injured person was employable at the time of the | 13 | | injury and is
provided aid under Articles III, IV, or V and any | 14 | | dependent or
member of his family is provided aid under Article | 15 | | VI, or vice versa,
both the Illinois Department and the local | 16 | | governmental unit shall have
a charge upon such claims, demands | 17 | | and causes of action for the aid
provided to the injured person | 18 | | and any
dependent member of his family, including all cash | 19 | | assistance, medical
assistance and food stamps, from the time | 20 | | of the injury to the date
of recovery.
| 21 | | "Recipient", as used herein, means (i) in the case of | 22 | | financial aid provided under this Code, the grantee of record | 23 | | and any
persons whose needs are included in the financial aid | 24 | | provided to the
grantee of record or otherwise met by grants | 25 | | under the appropriate
Article of this Code for which such | 26 | | person is eligible, (ii) in the case of health care benefits |
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| 1 | | provided under the Covering ALL KIDS Health Insurance Act, the | 2 | | child to whom those benefits are provided, and (iii) in the | 3 | | case of health care benefits provided under the Veterans' | 4 | | Health Insurance Program Act or the Veterans' Health Insurance | 5 | | Program Act of 2008, the veteran to whom benefits are provided.
| 6 | | In each case, the notice shall be served by certified mail | 7 | | or
registered mail, or by facsimile or electronic messaging | 8 | | when requested by the party or parties against whom the | 9 | | applicant or recipient has a claim, demand, or cause of action, | 10 | | upon the party or parties against whom the applicant or
| 11 | | recipient has a claim, demand or cause of action. The notice | 12 | | shall
claim the charge and describe the interest the Illinois | 13 | | Department, the
local governmental unit, or the county, has in | 14 | | the claim, demand, or
cause of action. The charge shall attach | 15 | | to any verdict or judgment
entered and to any money or property | 16 | | which may be recovered on account
of such claim, demand, cause | 17 | | of action or suit from and after the time
of the service of the | 18 | | notice.
| 19 | | On petition filed by the Illinois Department, or by the | 20 | | local
governmental unit or county if either is claiming a | 21 | | charge, or by the
recipient, or by the defendant, the court, on | 22 | | written notice to all
interested parties, may adjudicate the | 23 | | rights of the parties and enforce
the charge. The court may | 24 | | approve the settlement of any claim, demand
or cause of action | 25 | | either before or after a verdict, and nothing in this
Section | 26 | | shall be construed as requiring the actual trial or final
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| 1 | | adjudication of any claim, demand or cause of action upon which | 2 | | the
Illinois Department, the local governmental unit or county | 3 | | has charge.
The court may determine what portion of the | 4 | | recovery shall be paid to
the injured person and what portion | 5 | | shall be paid to the Illinois
Department, the local | 6 | | governmental unit or county having a charge
against the | 7 | | recovery.
In making this determination, the court shall conduct | 8 | | an evidentiary hearing
and shall consider competent evidence | 9 | | pertaining
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 | 6 | | exercise by
the court of its discretion to reduce the amount of | 7 | | a proven charge sought
to be enforced against the recovery | 8 | | shall rest with the party seeking such reduction.
| 9 | | The court may reduce and apportion the Illinois
| 10 | | Department's lien proportionate to the recovery of the | 11 | | claimant. The court may
consider the nature and extent of the | 12 | | injury, economic and noneconomic
loss, settlement offers, | 13 | | comparative negligence as it applies to the case
at hand, | 14 | | hospital costs, physician costs, and all other appropriate | 15 | | costs.
The Illinois Department shall pay its pro rata share of | 16 | | the attorney fees
based on the Illinois Department's lien as it | 17 | | compares to the total
settlement agreed upon. This Section | 18 | | shall not affect the priority of an
attorney's lien under the | 19 | | Attorneys Lien Act. The charges of
the Illinois Department | 20 | | described in this Section, however, shall take
priority over | 21 | | all other liens and charges existing under the laws of the
| 22 | | State of Illinois with the exception of the attorney's lien | 23 | | under said statute.
| 24 | | Whenever the Department or any unit of local government
has | 25 | | a statutory charge under this Section against a recovery for | 26 | | damages
incurred by a recipient because of its advancement of |
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| 1 | | any assistance, such
charge shall not be satisfied out of any | 2 | | recovery until the attorney's claim
for fees is satisfied, | 3 | | irrespective of whether or not an action based on
recipient's | 4 | | claim has been filed in court.
| 5 | | This Section shall be inapplicable to any claim, demand or | 6 | | cause of
action arising under (a) the Workers' Compensation Act | 7 | | or the predecessor
Workers' Compensation Act
of
June 28, 1913, | 8 | | (b) the Workers' Occupational Diseases Act or the predecessor
| 9 | | Workers' Occupational
Diseases Act of March 16, 1936; and (c) | 10 | | the Wrongful Death Act.
| 11 | | (Source: P.A. 94-693, eff. 7-1-06; 94-816, eff. 5-30-06; | 12 | | 95-755, eff. 7-25-08.)
| 13 | | Section 99. Effective date. This Act takes effect upon | 14 | | becoming law.".
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