Illinois Compiled Statutes
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305 ILCS 5/11-22
(305 ILCS 5/11-22)
(from Ch. 23, par. 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
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
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
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.
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
"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.
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
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.
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
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:
(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 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;
(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;
(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;
(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;
(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;
(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.
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.
The court may reduce and apportion the Illinois
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
State of Illinois with the exception of the attorney's lien under said statute.
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.
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
June 28, 1913, (b) the Workers' Occupational Diseases Act or the predecessor
Diseases Act of March 16, 1936; and (c) the Wrongful Death Act.
(Source: P.A. 98-73, eff. 7-15-13.)