By Attorney Adrienne Finucane
If you receive, or have recently received, a letter (entitled “Determination”) from the Illinois Department of Employment Security (IDES) stating that you are ineligible for unemployment, do not ignore it – even if you are no longer receiving or attempting to apply for unemployment.
This Determination letter can have serious consequences for past unemployment recipients, and we encourage anyone who receives one to check the dates of ineligibility in the Determination right away. If those dates indicate a time in the past, that means the determination is retroactive: the IDES believes you received unemployment payments in the past which you were not eligible for. You have 30 days from the date on the Determination letter to appeal this determination of ineligibility and should act immediately—because a determination of ineligibility for past dates means IDES has decided you now owe funds you received during the time-period listed in the Determination back to the agency. If you do not appeal this determination within 30 days, you will most likely be required to pay back some or all the money you received, even if the initial eligibility determination was caused by an error by the IDES.
In recent months, we've encountered a high volume of clients facing eligibility and overpayment determinations from IDES related to unemployment benefits disbursed during the Covid-19 pandemic, both under regular Illinois unemployment insurance (UI) and under Pandemic Unemployment Assistance (PUA), an expanded form of unemployment created by the federal CARES Act to assist people experiencing pandemic-related unemployment who did not qualify for regular UI. If an unemployment recipient is determined to have been ineligible under either UI or PUA, they will also automatically be considered ineligible for the supplemental funds in Federal Pandemic Unemployment Compensation (FPUC) that were provided to unemployment recipients – an additional at $300-$600/week – during the period from January 2020 to September 2021. When these multiple sources of unemployment benefits are combined, we have seen IDES claiming that working clients of ours owe tens of thousands of dollars back on amounts which IDES previously certified they were eligible back for in 2020-2021. Of course, our clients typically spent those benefits on cost-of-living expenses back when they received them 2-3 years ago, and are often faced with repayment demands from IDES that are vastly beyond their ability to pay.
For many past recipients of unemployment, unfortunately, the stakes only become clear when the IDES sends a follow-up letter to the Determination which actually contains the dollar amount that IDES believes the recipient owes (a $10,000-$40,000 IDES bill is not uncommon). This second letter, called a “Notice of Overpayment Determination and Recoupment Decision,” often takes months to arrive after the Determination—long after the appeal period has expired. So if a recipient did not appeal the original Determination letter within 30 days, by the time he or she receives the Overpayment letter, it is much more difficult (and in some cases impossible) to contest the overpayment amount. We've included some resources on how to appeal—and how to proceed if you've missed your appeal deadline— below.
For Recipients of Pandemic Unemployment Insurance (PUA): If you were found ineligible for regular unemployment but then granted CARES Act unemployment benefits during the pandemic, you were likely a recipient of PUA. PUA benefits ended in 2021, so if the IDES sends you a letter telling you that you are not eligible for PUA, this means they have concluded you were not eligible for some or all of the PUA payments you already received back in 2020-2021. Based on this determination that you were not eligible, IDES will require you to pay back the funds you already received. To appeal a determination of ineligibility for PUA within the 30-day window, follow the instructions on the IDES website here. Once you appeal, you will receive a Notice of Telephone Hearing in the mail, which you must attend to make your case to an administrative law judge at the IDES. The IDES website includes a list of the requirements for PUA eligibility and has FAQs page on PUA which you can explore to help build the argument in your appeal that you were eligible during the period IDES has determined you were not eligible, and/or that you were not overpaid.
If you miss the 30-day window to appeal your determination of ineligibility, you have two options, which you can pursue concurrently:
- Apply for a Waiver of Recoupment: For PUA, overpayments are eligible to be waived so you do not have to repay the amounts owed if you can show two things:
i. That the overpayments were not your fault. You can establish you were not at fault by showing either that (a) the IDES made the mistake in determining your eligibility and/or benefit amounts, not you; or (b) any errors you made in reporting your wages were the result of a good faith mistake or misunderstanding of IDES rules, not intentional; and
ii. The recovery of the overpayment would be against “equity and good conscience." The best way to meet this standard is to show that you and your family will experience extreme financial hardship if you are required to repay the amount the IDES is seeking from you.
Instructions for filing a waiver request with the IDES are available on the IDES website here. Once you file your waiver request form, you will get a Questionnaire mailed you by IDES. Fill that out and return it promptly according to IDES instructions.
- File a Request to Reconsider: A Request to Reconsider is similar to an appeal, and is filed in the same way, but rather than 30 days you have 1-3 years to file a Request to Reconsider with IDES— 5 years in some pandemic-related instances– depending on your circumstances. IDES will typically accept a Request to Reconsider in lieu of an appeal only where the unemployment recipient is able to present new information or evidence that IDES has not seen previously, showing he or she was eligible for PUA during the time period in dispute. If you do not provide new evidence, you run the risk that IDES will determine your Request to Reconsider is really an appeal, and therefore overdue. If IDES accepts your Request to Reconsider, you will receive a Notice of Telephone hearing in the mail, which you must attend to argue for why you were eligible or not overpaid the amounts IDES is claiming.
For recipients of regular Unemployment Insurance (UI): If you are found ineligible for UI you received in the past, you can appeal using the same form as that cited above for PUA, within 30 days of receiving your original determination deadline. The requirements to be eligible for UI (listed here) are more stringent than those for PUA. For example, unlike PUA, UI is not available for independent contractors or people who voluntarily left a job for a COVID-19-related reason. If you miss the 30-day appeal deadline, you can pursue roughly the same two options described above for PUA:
- Apply for a Waiver of Recoupment: Waivers are also available for UI for overpayments corresponding to the pandemic period between March 20, 2020 and present. The UI waiver of recoupment will be granted if you meet the following requirements: (1) that you were overpaid after March 8, 2020; (2) that you submitted the overpayment waiver request within 45 days; (3) that you were overpaid without fault on your part; and (4) that requiring you to pay back the overpayment would be against equity and good conscience. Requirements 3 and 4 are the same as for PUA waivers (explained above).
- File a Request to Reconsider: The general timing and requirements for a Request to Reconsider are the same for UI as they are for PUA, as explained above.However, bear in mind that the argument you make in your request to reconsider should be based on the rules for UI eligibility, not PUA eligibility, if you are requesting reconsideration of a UI determination.
Finally: If you receive a letter from IDES entitled Fraud Determination, you should take immediate action and be sure to appeal that determination to IDES within 30 days. A fraud determination can pertain to either UI or PUA, and means that IDES believes you sought and received benefits for which you knew you were not eligible, on purpose. If you do not appeal a fraud determination, you could be leveled monetary and other penalties on top of whatever overpayment amount IDES is claiming you owed. If you have received an ineligibility Determination and/or an Overpayment determination, a fraud determination may follow – so keep checking your mail.
Regardless of the route(s) you take in appealing IDES' determination of ineligibility or overpayment determination, we strongly recommend you pay close attention to any deadlines set for you in the letters you receive from IDES. IDES is strict about timeliness, and failure to meet deadlines will typically result in a final determination against you.
If you file an appeal, request to reconsider, or waiver request with the IDES and are denied for a reason other than your having missed a deadline IDES communicated to you, it can be worth also appealing that determination – especially if you are on the hook for a very high amount to be repaid. The decisions of administrative law judges making determinations about eligibility and overpayment for IDES can be appealed to the IDES Board of Review, and if you are unhappy with the result, even to the Circuit Court of the county where you reside in Illinois. Visit the IDES website for more information about the Board of Review appeal process.
 Ill. Admin. Code tit. 56, § 2720.160
 Illinois Insurance Act § 703.
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