Burke, A. v. Independence Blue Cross

Opinion

J. A11007-15

2015 PA Super 235 ANTHONY BURKE, : IN THE SUPERIOR COURT OF BY HIS PNG JOHN BURKE : PENNSYLVANIA : v. : : INDEPENDENCE BLUE CROSS, : : Appellant : No. 2299 EDA 2011

Appeal from the Order Entered July 19, 2011 In the Court of Common Pleas of Philadelphia County Civil Division at No. February Term, 2010, No. 002226

BEFORE: FORD ELLIOTT, P.J.E., WECHT, and FITZGERALD,* JJ.

DISSENTING STATEMENT BY FITZGERALD, J.: FILED NOVEMBER 13, 2015

I respectfully dissent. Insurance coverage of autism-related services

conducted at schools via the Autism Coverage Law (“ACL”) is a laudable and

noteworthy goal. As the majority observes, thirty members of the

Legislature, the former Governor, and the Pennsylvania Insurance

Department support a construction of the law requiring private health

insurers to cover applied behavior analysis (“ABA”) autism treatment

services conducted at schools, thereby relieving the Commonwealth from

shouldering some of the costs. But in my view, I perceive no statutory basis

warranting that construction. If our Legislature intended for private health

insurers to cover ABA services provided in schools, then it could have

explicitly excluded such services from the limiting provision at 40 P.S. §

764h(c). Accordingly, I respectfully dissent.

* Former Justice specially assigned to the Superior Court.