Indiana Launches New Office of Administrative Law Proceedings

During its 2019 legislative session, the Indiana General Assembly authorized the creation of a new Office of Administrative Law Proceedings (OALP). See H.E.A. 1223 (2019) (codified primarily at Ind. Code ch. 4-15-10.5). Effective July 1, 2020, the State of Indiana launched this new department, which is housed within the State Personnel Department, with the goal of providing efficient, effective, and impartial administrative proceedings for Indiana’s citizens and agencies. See, generally, https://www.in.gov/oalp/. As a result of this new law, OALP will now provide Administrative Law Judges (ALJs) to preside over administrative proceedings and conduct evidentiary hearings in disputes with state agencies. Administrative proceedings will continue to be governed by the Administrative Orders and Procedures Act (AOPA), Indiana Code art. 4-21.5, et seq., and agency-specific statutes, regulation and rules.

While ALJs in Indiana traditionally have been employed by, or contracted directly with, the agency before which the administrative proceedings were taking place, the new OALP will centralize the state’s ALJs and should provide more independent factfinders — given that agencies that are parties to a dispute will no longer be responsible for hiring the factfinder.

Jurisdiction of OALP

According to OALP, the state agencies falling under its jurisdiction and utilizing ALJs from OALP include:

• Bureau of Motor Vehicles
• Criminal Justice Institute
• Department of Child Services
• Department of Administration
• Department of Education
• Department of Financial Institutions
• Department of Homeland Security
• Department of Insurance
• Department of Labor
• Indiana State Department of Toxicology
• Department of Veteran’s Affairs
• Family and Social Services Administration (with certain exceptions)
• Horse Racing Commission
• Indiana Civil Rights Commission
• Indiana Department of Transportation
• Indiana Gaming Commission
• Indiana Grain Buyers and Warehouse Licensing Agency
• Indiana State Department of Health
• Indiana State Police
• Indiana Law Enforcement Academy
• Office of Community and Rural Affairs
• Secretary of State
• State Board of Education
• Treasurer of State

Indiana Code § 4-15-10.5-2 expressly exempts several agencies from OALP’s jurisdiction for administrative proceedings, including, but not limited to:

• Department of Workforce Development (DWD)
• Worker’s Compensation Board of Indiana
• Indiana Utility Regulatory Commission (IURC)
• Department of State Revenue (DOR)
• Department of Local Government Finance (DLGF)
• Indiana Board of Tax Review (IBTR)
• Natural Resources Commission (NRC)
• Office of Environmental Adjudication (OEA).

See Ind. Code § 4-15-10.5-2 (providing full list of exempted agencies).

Because each agency follows its own unique statutes, rules, and regulations, OALP provides an informational table displaying types of administrative cases subject to OALP jurisdiction and noting the ultimate authority and resources for each agency. Additionally, OALP adopted Procedures for Administrative Proceedings that incorporate existing administrative rules from several agencies. This clarity about agency ultimate authorities and existing administrative rules is an important benefit of OALP’s formation.

How to initiate and track an administrative proceeding with OALP

In order to initiate an administrative proceeding with OALP, a party will file a petition for review of an agency action pursuant to Indiana Code § 4-21.5-3-7 by submitting a new state form (State Form 56961) or submitting OALP’s online web form.

This form addresses several elements required for a petition for administrative review under AOPA, including that a party must state in writing facts demonstrating that the petitioner is one of the following:

• A person to whom the order is specifically directed
• The petitioner is aggrieved or adversely affected by the order, or
• The petitioner is entitled to review under any law

See Ind. Code § 4-21.5-3-7(a). Other information requested by OALP on the form includes: contact information for the party or entity affected, contact information for attorney or representative, information about the order being reviewed, and the desired outcome of the proceeding.

Attorneys and parties will also be able to now track administrative proceedings at OALP through an online case management system. OALP advises that each case will be assigned a unique administrative cause number and OALP employees will be able to input minute entries and documents into the electronic system where they will be recorded on the cases’ chronological case summary.

Parties should also expect that agencies and ALJs will transfer pending administrative proceedings to OALP, but it remains to be seen when that will occur or how parties will be notified of such changes.

What else to expect from OALP

And finally, while there are numerous procedural and logistical questions that will likely need to be answered in the coming weeks and months, below are some important points to consider as Indiana launches its new OALP:

• Indiana Code § 4-15-10.5-13(b) requires OALP to consider an ALJ’s “experience, technical competence, and specialized knowledge” when “assigning an administrative law judge to an agency or an administrative proceeding[.]” Given this statutory directive, parties who frequently appeared before ALJs at agencies in the past are likely to find familiar factfinders assigned initially to their administrative cases.
• OALP is advising that it favors scheduling hearings virtually unless prohibited by specific law or regulation. Yet, OALP provides that any of the parties or the ALJ may request an in-person hearing which should be granted “absent extraordinary circumstances.”
• OALP will permit parties to file case documents by serving them through secure e-mail to the administrative law judge and other parties. Parties may also file documents by mail or personal delivery by sending the document to:
  
  Office of Administrative Law Proceedings
  ATTN: (insert your administrative case number here)
  402 West Washington Street, Room W161
  Indianapolis, IN 46204
  
  
• One other very important aspect of the OALP is that, unless expressly designated by the agency, “the office shall not be considered the ultimate authority in any administrative proceeding” and “a decision by the office in an administrative proceeding is not a final agency action” for the purposes of seeking judicial review of an agency action. See Ind. Code § 4-15-10.5-12. As a result, a decision from an OALP ALJ, including recommended findings of fact and conclusions of law, will be a non-final recommended order that is subject to review by the agency’s ultimate authority, which can affirm, modify or dissolve the ALJ’s order. Ind. Code § 4-21.5-3-29. OALP provides that the ALJ’s recommended order will be sent to all parties and to the ultimate authority for review unless the order states otherwise. Absent additional instruction of the ALJ or agency, there does not appear to be any new or additional procedures for parties filing objections to an ALJ’s recommended order under Indiana Code § 4-21.5-3-29(d).
• ALJs at OALP will maintain a great deal of discretion to control the prehearing discovery and proceedings. For example, an ALJ can, at the request of any party or upon the ALJ’s own motion, issue subpoenas, discovery orders, and protective orders in accordance with the rules governing civil actions in the courts. Ind. Code § 4-21.5-3-22. An ALJ is also responsible for regulating the course of the proceedings in conformity with any prehearing order and in an informal manner without recourse to the common law rules of evidence. Ind. Code § 4-21.5-3-25(b). The ALJ is also directed to afford to all parties the opportunity to respond, present evidence and argument, conduct cross-examination, and submit rebuttal evidence to the extent necessary for full disclosure of all relevant facts and issues during the administrative hearing. Ind. Code § 4-21.5-3-25(c).

The procedural rules and standards for administrative proceedings can be nuanced and complex, and their application to particular circumstances depends on the statutes, administrative code, and rules governing the specific agency action at issue, in addition to other facts and circumstances at play. Businesses seeking review of government agency actions should consult with counsel. Faegre Drinker attorneys stand ready to assist in navigating Indiana’s administrative review process.