It will take more than a one-year pilot program to make a dent in the big backlog of administrative hearings, an ISBA lawyer says.

On April 29, 2016 Governor Rauner signed an executive order establishing a pilot program designed to improve the administrative hearing process in Illinois.

Over 100,000 administrative hearing requests are filed in Illinois every year. Administrative hearings arise in many areas of state law, from human rights complaints and unemployment benefits to professional licensing and deciding eligibility for healthcare and family benefits.

As was discussed in a February 2016 LawPulse item, technical pitfalls await those who seek to challenge an administrative law decision. What's more, many administrative entities are facing massive backlogs. The Illinois Human Rights Commission has a backlog of more than 1,000 cases. A hearing at the Illinois Department of Financial and Professional Regulation can take up to two years to reach completion.

Executive Order 16-06, available at https://www.illinois.gov/Government/ExecOrders/Pages/2016_6.aspx, establishes a Bureau of Administrative Hearings at Central Management Services. It is tasked with analyzing current administrative procedures with an eye towards improving efficiency and services.

Statutory constraints

Carl Draper of Springfield, a partner at Feldman Wasser and past chair of the ISBA's Administrative Law Section Council, applauds Rauner's effort, but says that the pilot program may be overly ambitious without allocating additional resources towards its implementation. Given the current budget crisis in Springfield, those resources may not be readily available.

However, as the Order points out, the agencies each have their own systems, some of which have not entered the digital era. Draper attributes this to statutory constraints. Generally, agencies are bound by the statutes and rules that create them. Some are simply "stuck with the rules from the statute" if there's no further legislative action, he says.

The Order tasks the director of Central Management Services with creating the new hearings bureau and inviting up to 10 state agencies to participate in the pilot program. The bureau is charged with developing training programs for administrative law judges, systems for assigning cases, and uniform rules of procedure, among other things.

The Order also directs the bureau to implement modern, uniform filing and case management systems in cooperation with the newly created Illinois Department of Innovation and Technology. The bureau will also consider whether further consolidation of administrative hearing systems would increase efficiency and reduce backlogs for agencies.

According to Draper, the idea of creating a centralized administrative hearing court is a 30-year-old idea. He points out that there have been legislative proposals to do exactly that. Their intention, which seems to mirror that of Rauner's order, was to make the hearing process more uniform and fair across all administrative departments.

However, accomplishing that goal will take a large piece of legislation, he says. Draper questions whether a one-year pilot program provides enough time to accomplish the goals set by the Order. "Getting the right people together and identifying needs and solutions could take a year on its own."

Ancient, incompatible tech systems

Draper supports the idea of improving technology across the administrative agencies. He says that the Illinois Department of Human Services has several different computer systems across its divisions. In order for divisions to share information, they need to use outside consultants to transfer data from one system to the other. Some of those computers are at least 20 years old.

Why so many systems? Some divisions existed before they were brought under the DHS umbrella, Draper says. If a federal regulation requires a specific type of report, then that division might use its own system. Another division might be constrained by a different regulation, using a different system.

Sharing information amongst agencies is important, says Draper. For example, death certificates need to be processed by many administrative agencies for purposes ranging from determining death benefits to removing deceased voters from the voting registry. Disparate systems between DHS divisions and other agencies can make this process cumbersome and error prone.

While improved technology will ameliorate some problems, Draper doesn't believe it will resolve the current backlogs in the system. "I don't see how it helps administrative law judges write opinions any faster."

And backlogs are a major problem, he says. It can take the Illinois Human Rights Commission anywhere from a few months to five years to issue a decision.

If, for example, the decision involves an employee who was improperly terminated, delays can cause a host of problems. If the employee is ultimately reinstated, the employer can be required to pay back wages to the employee. A three-year delay can lead to a large back-wages award. Also, the employee may be left unemployed or underemployed while waiting for a determination.

Overall, Draper applauds the governor's goals. But the Order is a baby step in the right direction, he says.