Burke v. Independence Blue Cross: Legislature intended autism treatment to be offered in schools

The Autism Coverage Law requires insurance companies to provide coverage for autism treatment under certain group plans. One coverage specifically included in the statute is “applied behavioral analysis” (“ABA”). However, the statute allows companies to maintain “general exclusions or limitations of a health insurance policy.” ABA 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.

Independence Blue Cross denied ABA coverage at Anthony Burke’s school, arguing that the policy’s general “place-of-services” exclusion permitted them to decline delivery of otherwise-covered services at a location other than the doctor (in this case, the school). But of course, ABA coverage is most obviously needed in a school setting. What autistic child needs “environmental modifications” at the doctor?

Burke’s father argued that this exclusion operated to exclude ABA services at the main place where they are truly needed for Anthony in contravention of the General Assembly’s legislative intent in passing the Autism Coverage Law in the first place.

Majority by Saylor: Autism Coverage Law is materially ambiguous

Chief Justice Thomas Saylor, speaking for the 4-1 majority, holds that the Autism Coverage Law is “materially ambiguous in relevant aspects.” The holding is discussed more in a moment, but the ambiguity allows the Court to conclude the statute was incomprehensible without looking behind the statute to legislative intent. Simply put, “the Legislature did not intend to permit exclusions that would eviscerate aspects of the coverage for autism treatment services that the Assembly has provided are mandatory.” Thus, our Supreme Court held “that the Legislature intended to permit only general exclusions that would not substantially undermine the mandatory coverage requirement.”

In other words, in passing a general rule that insurance providers must provide autism treatment, and by explicitly including ABA treatment in the statute, the legislature did not envision allowing insurers to escape this mandate by simply providing a general exclusion that ABA couldn’t be provided at the place it was primarily needed. “[W]e simply do not believe that the Legislature intended to permit insurers to exclude coverage in the sensory-laden educational environment where children spend large portions of their days, or to require families to litigate the issue of medical necessity discretely in individual cases to secure such location-specific coverage for the treatment.”

With this holding in mind, we return to the ambiguity justifying the Court’s foray into legislative intent: the Court held that the statute’s “catchall” provision was oddly worded, and appeared to be internally inconsistent. (“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.”) The “any other exclusions” language appeared to the majority to be a reference to an entirely different style of exclusions than the foregoing language (the legal doctrine for this argument is ejusdem generis), and the statute’s apparent confusion led the Court to conclude it was irreconcilable without looking behind the statute to legislative intent. Thus, Anthony Burke’s ABA treatment must be covered by Independence Blue Cross at his school.

Dissent by Mundy: What ambiguity?

I rearrange the majority’s analysis above to end on the point which Justice Mundy dissents on. The statute, though perhaps oddly worded, appears to be fairly unambiguous. The legislature certainly could have “indicated that coverage for in-school services was mandatory, but it did not do so,” as the majority admits. Justice Mundy believes the statute is devoid of any confusion. The statute “plainly permits a health insurance provider to apply a general exclusion of its health insurance policy to limit the coverage mandated by” the Autism Coverage Law. Therefore, because “the words of a statute are clear and unambiguous, there is no need to look beyond the plain meaning of the statute ‘under the pretext of pursuing its spirit.’” (quoting 1 Pa.C.S. § 1921(c)).

Conclusion

This case really appears to be a situation where the majority reached behind the statute without any real ambiguity. I read the section on ejusdem generis several times, and I just can’t follow why the majority felt the statute was unclear. The phrase in question may have been strange, but it doesn’t appear to be ambiguous. Furthermore, while going behind the statute is discouraged absent the existence of an ambiguity, the Court still could have ruled that the statute was frustrated by the exclusion without finding an ambiguity.

Justice Mundy calls the Court on its analysis—and the majority admits some reticence in its ruling in its final footnote (admitting “reluctance to accord too much weight to the statute’s  allusions to [] coordination” with schools’ individual education plan supervisors over ABA treatment on the basis that the legislature could have made it clearer that such coverage is required to be offered in schools).

This case should probably prompt legislative action either way. Was this the legislature’s intent? The statute can be clarified if the legislature doesn’t agree with the ruling, and ultimately, that would be a good use of the Assembly’s time.

One final note on the vote count: Justices Todd and Wecht did not cast votes, and Justice Wecht did not participate in consideration of the case.