Burke Ex Rel. Burke v. Independence Blue Cross

128 A.3d 223, 2015 Pa. Super. 235, 2015 Pa. Super. LEXIS 743, 2015 WL 7121854
CourtSuperior Court of Pennsylvania
DecidedNovember 13, 2015
Docket2299 EDA 2011
StatusPublished
Cited by11 cases

This text of 128 A.3d 223 (Burke Ex Rel. Burke v. Independence Blue Cross) is published on Counsel Stack Legal Research, covering Superior 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, 128 A.3d 223, 2015 Pa. Super. 235, 2015 Pa. Super. LEXIS 743, 2015 WL 7121854 (Pa. Ct. App. 2015).

Opinions

OPINION BY

FORD ELLIOTT, P.J.E.:

Independence Blue Cross (“IBC”) appeals from the order entered July 19, 2011, holding that IBC was required to provide coverage for school-based applied behavioral analysis, a type of autism-related service, notwithstanding a place-of-serviee exclusion in the policy which specified that no services would be covered if the care was provided at certain types of locations, including schools. The trial court found that Act 62, codified at 40 P.S. § 764h, requires coverage of medically necessary treatment for autism spectrum disorders, including applied behavioral analysis, regardless of whether it is otherwise excluded by the policy. In a memorandum, this court reversed the trial court’s order without addressing the merits of the issue, finding that appellee, Anthony Burke (“Burke”), did not have a right of statutory appeal under Act 62. Our supreme court reversed and remanded to this court for consideration of the merits of the appeal, finding that while Burke could not bring a statutory appeal under Act 62, he could seek declaratory and injunctive relief in [225]*225the court’s original jurisdiction. Our supreme court concluded that the lack of appellate jurisdiction under the relevant Act 62 provision was the result of a legislative drafting error, and that individuals in Burke’s position must have access to a judicial forum. Now, on remand, after careful consideration, we agree with the trial court that irrespective of the policy’s exclusion of all school-based services, Act 62 required IBC to cover .Burke’s “in school” applied behavioral analysis services during the relevant policy period. As such, we affirm and remand for further proceedings to determine what relief, if any, is appropriate or even possible.

The trial court summarized the history of this case as follows:

■ The parties agree on the relevant facts. Anthony Burke, a minor child of John Burke, suffers from an Autism Spectrum disorder. He had been receiving Applied Behavior Analysis (ABA) services in the home to treat his condition before August 25, 2009. On that date, the plaintiffs father, John Burke, requested that Independence Blue Cross (IBC) pay for similar ABA services at Anthony’s elementary school, a local Catholic parish school. Magellan Health Services, IBC’s administrator for mental health and substance abuse coverage, denied this request. In denying coverage, Magellan pointed to a provision in the Health Plan Policy which stated that “no benefits will be provided for services ... [f]or care in a school.” Burke appealed this decision and it was eventually submitted to IPRO, an independent “Certified Review Agency,” which upheld Magellan’s denial. At the time his claim came before IPRO, Anthony was six years old.
On January 1, 2010, Act 62 came in to effect, codified in 40 P.S. § 764h(a). Act 62 provides that “[a] health insurance policy ... shall provide to covered individuals ... for the treatment of autism spectrum disorders.” “Treatment” is defined by the Act to include “rehabilitative care,” which, in turn, is defined to “Include[e] [ (sic) ] applied behavioral analysis.” 40 P.S. 764h(f)(15); 40 P.S. 764h(f)(12). Act 62 further provides that “[cjoverage under this section shall be subject to ... general exclusions ... to the same extent as other medical services or programs covered by the policy are subject to these provisions.” 40 P.S. § 764h(c).
On July 1, 2010, Mr. Burke’s health plan converted to a self funded policy of a sort not subject to the requirements of Act 62. The parties agree that IBC cannot be liable for a failure to provide coverage either before January 1, 2010 or after July 1, 2010. The question before this court is only whether Act 62 required IBC to cover Anthony’s “in school” ABA services from the period between January 1st and July 1st of 2010.
The parties submitted to the Court the following Stipulation of Facts:
1. The Independence Blue Cross policy which provided coverage to the plaintiff until July 1,, 2010 contained the following exclusion, which applies to all services under the policy:
“Except as specifically provided in this contract, no benefits will be provided for services, supplies or charges:
a. For care in a nursing home, home for the aged, convalescent home, school, institution for retarded children, custodial care in a skilled nursing facility”
2. On January 1, 2010, Act 62 (40 P.S. § 764h, “Autism Spectrum Disorders Coverage”) became effective as it relates to the plaintiff, January [226]*2261st being the anniversary date of the Independence Blue Cross policy in question.
3. Effective July 1,2010, the [c]overage provided both Suzanne M. [Bjurke and her husband, John T. Burke, converted from fully funded insurance ' policies to self funded healthcare 'coverage.
4. Act 62 is inapplicable to such self ■ funded healthcare programs.
5. Independence Blue Cross has' no responsibility to'provide insurance coverage, pursuant to the quoted exclusion in its policy, for any “in school” services to plaintiff.' '
6. The only issue before this court going forward is whether or not Act 62 voids the “place of service”- exclusion in the Independence Blue Cross policy - for the period of January 1, 2010 through July 1,2010.

Trial court opinion, 7/19/11 at 1-3.

The trial court ruled in favor of Burke, and as stated above, on appeal, this court reversed, finding that the trial court lacked jurisdiction. Act 62, 40 P.S. § 764h(k)(2), provides for an appeal of an order of an expedited independent external review “disapproving a denial or partial denial.” In the instant case, the external review agency, IPRO, had approved a denial of coverage. Therefore, by the plain language of the statute, Burke could not take a statutory appeal.

Our supreme court granted review to consider whether individuals diagnosed with autism-spectrum disorders have a right to judicial review of a denial of insurance coverage. Initially, however, the court had to decide whether the matter was moot, where the Burkes were now self-insured and coverage ended July 1, 2010. According to IBC, Burke never offered any evidence that his family incurred out-of-pocket expenses for delivery of ABA services at his school.. Obviously, if Burke never sought autism services between January 1 and July 1, 2010, it would be impossible for an order to issue that would have any practical effect. Burke v. Independence Blue Cross, — Pa. -, 103 A.3d 1267, 1270 (2014). The court, in Burke decided that a well-recognized exception to the mootness doctrine applied, ie.,. that the question was of great public importance and/or capable of repetition while evading appellate review:

■ This' is so due to: (a) the prevalence of ■autism-spectrum-disorder ' diagnoses; and (b) the significant amount of time that ordinarily elapses between when an insurer originally denies coverage and when this Court — after multiple levels of administrative and judicial review — finally rules on whether such denial was permissible under Act 62. Moreover, as in Rendell,

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Cite This Page — Counsel Stack

Bluebook (online)
128 A.3d 223, 2015 Pa. Super. 235, 2015 Pa. Super. LEXIS 743, 2015 WL 7121854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burke-ex-rel-burke-v-independence-blue-cross-pasuperct-2015.