dissenting:
I respectfully disagree with the majority’s use of collateral estoppel to avoid reaching the merits of this case. The majority concludes an “identity of issues” exists between this case and the administrative proceeding in Shapo because the Director of Insurance in both cases “cited some of the same reasons” for rejecting the Medicaid defense: “(e.g., the apparent contradiction between the Medicaid defense, on the one hand, and the statutory purpose of the Act (215 ILCS 125/6—2 (West 2004)), which is to protect HMO enrollees ‘and their beneficiaries, payees and assignees’ against an HMO’s insolvency).” 372 Ill. App. 3d at 36-37. The grounds relied on for rejecting the Medicaid defense in each case are different. The finding central to the Director’s decision here was that the Providers did not participate in the state Medicaid program or purposefully submit their claims for Medicaid reimbursement. It was this finding that the Director relied on to distinguish Banks v. Secretary of Indiana Family & Social Services Administration, 997 F.2d 231, 243-44 (7th Cir. 1993) (Medicaid providers are prohibited from seeking payment from Medicaid recipients under section 447.15 of Title 4 of the Code of Federal Regulations (section 447.15) (42 C.F.R. §447.15 (2006)). The administrative order in Shapo, on the other hand, addresses directly whether section 447.15 prohibits a provider from seeking payment from a Medicaid recipient. Whether the providers in Shapo participated in the Medicaid program was not a consideration in the analysis.
A provider’s status as a Medicaid provider may be outcome determinative of whether the provider may seek payment from Medicaid recipients. If Medicaid providers are prohibited from such action under section 447.15, there can be no recovery against the Association under section 6—8(8)(b)(ii) of the Act (215 ILCS 125/6—8(8)(b)(ii) (West 2004)). I find the majority’s conclusion that collateral estoppel applies under these circumstances unpersuasive. The parties in the two proceedings are the same; the issues are not.
I find equally troublesome the procedural oddities that attended these proceedings. First, although the providers raised collateral estoppel in their motion for summary disposition on the Medicaid defense, the argument does not appear to have been considered. If, as the Providers argue, the Shapo proceeding was outcome determinative of this proceeding, why did the Director not address the issue? Second, the parties have not cited a final administrative order from the Shapo proceeding in the record on appeal here. The parties and the majority cite only to an order entered by the hearing officer, which is not a final order for purposes of administrative review. See 215 ILCS 5/407 (West 2002).
Section 6—8(8)(b)(ii) of the Act limits the Association’s liability to Providers “if and to the extent ***, as a matter of law such provider may not seek payment from the [patient].” 215 ILCS 125/6—8(8)(b)(ii) (West 2004). The Association argued, and I agree, that participating Medicaid providers are prohibited from seeking payment from Medicaid recipients under section 447.15 (42 C.F.R. §447.15 (2006); see also Banks, 997 F.2d at 243-44). The Director here found the law did not apply because the Providers did not participate in the Medicaid program. But, as the trial court pointed out and the record confirms, the Providers were under contract to provide Medicaid services. The contract is dispositive of whether the Providers were Medicaid participants during the relevant time period. The Director’s finding to the contrary is clearly erroneous.
I would reverse the Director’s decision denying the Association’s motion for summary judgment on the Medicaid defense.