Burke Ex Rel. Burke v. Independence Blue Cross

171 A.3d 252
CourtSupreme Court of Pennsylvania
DecidedOctober 5, 2017
Docket23 EAP 2016
StatusPublished
Cited by9 cases

This text of 171 A.3d 252 (Burke Ex Rel. Burke v. Independence Blue Cross) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burke Ex Rel. Burke v. Independence Blue Cross, 171 A.3d 252 (Pa. 2017).

Opinions

OPINION

CHIEF JUSTICE SAYLOR

The questions presented concern whether a law requiring private insurance companies to provide coverage for treatment of autism spectrum disorders invalidates express, contractual place-of-services exclusions pertaining to the delivery of such services in schools.

Among other modifications to the Insurance Company Law of 1921,1 Act 62 of 2008 amended this statutory regime to require'that certain group health insurance policies provide coverage for the “treatment of autism-spectrum disorders,” subject to an initial $36,000 maximum benefit annually.2 Per this amendment — denominated by the Insurance Department as the “Autism Coverage Law” — relevant treatment is defined to include “medically necessary pharmacy care, psychiatric care, psychological care, rehabilitative care and therapeutic care” prescribed and provided in accordance with Act 62. 40 P.S. § 764h(f)(14).

The Law specifically recognizes therapy or treatment in the nature of “applied behavioral analysis,” or “ABA,” which is defined as:

the design, implementation and evaluation of environmental modifications, using behavioral stimuli and consequences, to produce socially significant improvement in human, behavior or to prevent loss of attained skill or function, including the use of direct observation, measurement and functional analysis of the relations between environment and behavior.

Id, § 764h(f)(l). Also of particular relevance to this appeal, the statute allows for some policy-based restrictions upon coverage, as follows:

Coverage under this section shall be subject to copayment, deductible and coinsurance provisions and any other general exclusions or limitations of a health insurance policy or government program to the same extent as other medical services covered by the policy or program are subject to these provisions.

Id. § 764h(c) (emphasis added).

In April 2009, the Insurance Department published a notice offering guidance concerning the “general exclusions or limitations” language quoted above. There, the Department took the position that the Law forbids policy exclusions that eliminate coverage for the types of treatment for autism spectrum disorders specifically delineated in the statute, such as ABA. According to the Department, the statutory terms sanctioning general exclusions pertained only to services or treatments for autism spectrum disorders that were not particularized in the enactment. By way of example, the Department explained, “if a policy generally excludes acupuncture treatment, and an autism provider believes that acupuncture may provide some benefit to his autism patient, that particular treatment may nonetheless be excluded from the mandated coverage.” Pa. Ins. Dep’t, Autism Coverage; Notice 2009-03, 39 Pa. Bull. 1927 (Apr. 11, 2009).

Anthony Burke is a child who has been diagnosed with an autism-spectrum disorder. As pertinent here, throughout the first six months of 2010, Anthony and his family were covered by a group health insurance policy (the “Policy”) with Appellant, Independence Blue Cross (“Insurer”),3 maintained through the employer of John Burke, Anthony’s father.4 Initially, Anthony received ABA treatment at home.

In August 2009, before the Autism Coverage Law became effective relative to the Burkes’ coverage, the family requested benefits, under the Policy, for ABA services to be provided at the parochial elementary school attended by Anthony. Insurer, however, denied coverage through an administrator of mental health benefits, on account of an express place-of-services exclusion in the Policy delineating that services would not be covered if the care was provided in certain locations, including schools.5 After unsuccessful administrative appeals to Insurer, the Burkes requested an independent external review by an agency appointed by the Department of Insurance, see 40 P.S. § 764h(k)(l), which upheld the denial.

On Anthony’s behalf, Mr. Burke filed in the common pleas court a complaint couched in the nature of a statutory appeal, see id. § 764h(k)(2), and as a plea for declaratory and injunctive relief. He averred that Anthony had received a physician’s diagnosis of Pervasive Development Disorder — Not Otherwise Specified, a form of autism spectrum disorder. Additionally, it was alleged that the doctor had prescribed ABA, including “Therapeutic Staff Support,” entailing the use of a “shadow,” i.e., an individual who accompanies the patient throughout his daily routine to assist in maintaining focus.

In a motion for judgment on the pleadings, Mr. Burke argued that the place-of-services exclusion in the Policy was nullified, as it pertained to in-school services, by the Autism Coverage Law. In this regard, Mr. Burke relied upon the express requirement that coverage for ABA must be afforded. See, e.g., Motion for Judgment on the Pleadings at 12-13 (“Defendant contends that the general exclusion of services in school allows them to circumvent the intent of Act 62 and exclude ABA coverage.”). With regard to the terms of the Law allowing for exclusions, Mr. Burke took the position that the language was ambiguous, because an interpretation allowing any exclusion, including, for example, one for ABA services, would undermine the effect of the statute. Accordingly, Mr. Burke urged the court to apply principles of statutory construction. See, e.g., Norfolk S. Ry. Co. v. PUC, 621 Pa. 312, 328, 77 A.3d 619, 629 (2013) (“Where ambiguities exist, [courts] employ principles of statutory construction[.]”).

In terms of the language and purposes of the Autism Coverage Law, Mr. Burke stressed that the statute defines ABA to encompass the “evaluation of environmental modifications,” subsuming the use of “direct observation” and analysis of the relations between “environment” and behavior. 40 P.S. § 764h(f)(l) (emphasis added). According to Mr. Burke, absent the ability of a services provider to employ direct observation and analysis, and to design and implement environmental modifications that are effective in the school environment, ABA therapy is thwarted.6 Indeed, Mr. Burke posited that “to eliminate coverage of ABA in school is to eliminate an entire category of ABA.” Plaintiffs Brief at 21.

Pursuing another avenue of statutory construction, Mr. Burke further highlighted the guidance provided by the Insurance Department. See 1 Pa'.C.S. § 1921(c)(8) (prescribing for consideration of legislative and administrative interpretations of ambiguous statutes). He argued:

Notice 2009-03 makes clear, that under Act 62, a policy exclusion cannot legally apply to the provision of the services specified in the statute, including Applied Behavioral Analysis. The distinctions drawn by the Insurance Department in Notice 2009-03 would have no meaning if [Insurer] were permitted to apply a limitation that effectively prevented [Anthony] from receiving mandated treatment in the very environment for which it has been prescribed.

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Bluebook (online)
171 A.3d 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burke-ex-rel-burke-v-independence-blue-cross-pa-2017.