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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 | upon the party or parties against whom the applicant or
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2 | recipient has a claim, demand or cause of action. The notice | ||||||
3 | shall
claim the charge and describe the interest the Illinois | ||||||
4 | Department, the
local governmental unit, or the county, has in | ||||||
5 | the claim, demand, or
cause of action. The charge shall attach | ||||||
6 | to any verdict or judgment
entered and to any money or property | ||||||
7 | which may be recovered on account
of such claim, demand, cause | ||||||
8 | of action or suit from and after the time
of the service of the | ||||||
9 | notice.
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10 | On petition filed by the Illinois Department, or by the | ||||||
11 | local
governmental unit or county if either is claiming a | ||||||
12 | charge, or by the
recipient, or by the defendant, the court, on | ||||||
13 | written notice to all
interested parties, may adjudicate the | ||||||
14 | rights of the parties and enforce
the charge. The court may | ||||||
15 | approve the settlement of any claim, demand
or cause of action | ||||||
16 | either before or after a verdict, and nothing in this
Section | ||||||
17 | shall be construed as requiring the actual trial or final
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18 | adjudication of any claim, demand or cause of action upon which | ||||||
19 | the
Illinois Department, the local governmental unit or county | ||||||
20 | has charge.
The court may determine what portion of the | ||||||
21 | recovery shall be paid to
the injured person and what portion | ||||||
22 | shall be paid to the Illinois
Department, the local | ||||||
23 | governmental unit or county having a charge
against the | ||||||
24 | recovery.
In making this determination, the court shall conduct | ||||||
25 | an evidentiary hearing
and shall consider competent evidence | ||||||
26 | pertaining
to the following matters:
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1 | (1) the amount of the charge sought to be enforced | ||||||
2 | against the recovery
when expressed as a percentage of the | ||||||
3 | gross amount of the recovery; the
amount of the charge | ||||||
4 | sought to be enforced against the recovery when expressed
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5 | as a percentage of the amount obtained by subtracting from | ||||||
6 | the gross amount
of the recovery the total attorney's fees | ||||||
7 | and other costs incurred by the
recipient incident to the | ||||||
8 | recovery; and whether the Department, unit of
local | ||||||
9 | government or county seeking to enforce the charge against | ||||||
10 | the recovery
should as a matter of fairness and equity bear | ||||||
11 | its proportionate share of
the fees and costs incurred to | ||||||
12 | generate the recovery from which the charge
is sought to be | ||||||
13 | satisfied;
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14 | (2) the amount, if any, of the attorney's fees and | ||||||
15 | other costs incurred
by the recipient incident to the | ||||||
16 | recovery and paid by the recipient up to the
time of | ||||||
17 | recovery, and the amount of such fees and costs remaining | ||||||
18 | unpaid
at the time of recovery;
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19 | (3) the total hospital, doctor and other medical | ||||||
20 | expenses incurred for
care and treatment of the injury to | ||||||
21 | the date of recovery therefor, the portion
of such expenses | ||||||
22 | theretofore paid by the recipient, by insurance provided
by | ||||||
23 | the recipient, and by the Department, unit of local | ||||||
24 | government and county
seeking to enforce a charge against | ||||||
25 | the recovery, and the amount of such
previously incurred | ||||||
26 | expenses which remain unpaid at the time of recovery
and by |
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1 | whom such incurred, unpaid expenses are to be paid;
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2 | (4) whether the recovery represents less than | ||||||
3 | substantially full
recompense
for the injury and the | ||||||
4 | hospital, doctor and other medical expenses incurred
to the | ||||||
5 | date of recovery for the care and treatment of the injury, | ||||||
6 | so that
reduction of the charge sought to be enforced | ||||||
7 | against the recovery would
not likely result in a double | ||||||
8 | recovery or unjust enrichment to the recipient;
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9 | (5) the age of the recipient and of persons dependent | ||||||
10 | for support upon
the recipient, the nature and permanency | ||||||
11 | of the recipient's injuries as
they affect not only the | ||||||
12 | future employability and education of the recipient
but | ||||||
13 | also the reasonably necessary and foreseeable future | ||||||
14 | material, maintenance,
medical, rehabilitative and | ||||||
15 | training needs of the recipient, the cost of
such | ||||||
16 | reasonably necessary and foreseeable future needs, and the | ||||||
17 | resources
available to meet such needs and pay such costs;
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18 | (6) the realistic ability of the recipient to repay in | ||||||
19 | whole or in part
the charge sought to be enforced against | ||||||
20 | the recovery when judged in light
of the factors enumerated | ||||||
21 | above.
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22 | The burden of producing evidence sufficient to support the | ||||||
23 | exercise by
the court of its discretion to reduce the amount of | ||||||
24 | a proven charge sought
to be enforced against the recovery | ||||||
25 | shall rest with the party seeking such reduction.
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26 | The court may reduce and apportion the Illinois
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1 | Department's lien proportionate to the recovery of the | ||||||
2 | claimant. The court may
consider the nature and extent of the | ||||||
3 | injury, economic and noneconomic
loss, settlement offers, | ||||||
4 | comparative negligence as it applies to the case
at hand, | ||||||
5 | hospital costs, physician costs, and all other appropriate | ||||||
6 | costs.
The Illinois Department shall pay its pro rata share of | ||||||
7 | the attorney fees
based on the Illinois Department's lien as it | ||||||
8 | compares to the total
settlement agreed upon. This Section | ||||||
9 | shall not affect the priority of an
attorney's lien under the | ||||||
10 | Attorneys Lien Act. The charges of
the Illinois Department | ||||||
11 | described in this Section, however, shall take
priority over | ||||||
12 | all other liens and charges existing under the laws of the
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13 | State of Illinois with the exception of the attorney's lien | ||||||
14 | under said statute.
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15 | Whenever the Department or any unit of local government
has | ||||||
16 | a statutory charge under this Section against a recovery for | ||||||
17 | damages
incurred by a recipient because of its advancement of | ||||||
18 | any assistance, such
charge shall not be satisfied out of any | ||||||
19 | recovery until the attorney's claim
for fees is satisfied, | ||||||
20 | irrespective of whether or not an action based on
recipient's | ||||||
21 | claim has been filed in court.
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22 | This Section shall be inapplicable to any claim, demand or | ||||||
23 | cause of
action arising under (a) the Workers' Compensation Act | ||||||
24 | or the predecessor
Workers' Compensation Act
of
June 28, 1913, | ||||||
25 | (b) the Workers' Occupational Diseases Act or the predecessor
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26 | Workers' Occupational
Diseases Act of March 16, 1936; and (c) |
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1 | the Wrongful Death Act.
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2 | (Source: P.A. 94-693, eff. 7-1-06; 94-816, eff. 5-30-06; | ||||||
3 | 95-755, eff. 7-25-08.)
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4 | Section 99. Effective date. This Act takes effect upon | ||||||
5 | becoming law.
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