Health Insurance and Applied Behavioral Analysis for Autism – Burke v. Independence Blue Cross
Burke v. Independence Blue Cross, Case No. 2226, 2011 Phila. Ct. Com. Pl. LEXIS 251 (Pa. C.P. July 19, 2011), is an important Pennsylvania case that barred a health insurance company subject to a law requiring health insurance plans to provide Applied Behavioral Analysis, speech language pathology, occupational therapy and other services to children with Autism from arguing that it did not have to provide these services on the grounds that its plan contained a “general exclusion,” which was permitted under the act, for the services.
In this case, plaintiff Anthony Burke was a child living with an Autism Spectrum Disorder (“ASD”). He began receiving Applied Behavior Analysis (“ABA”) services in home to treat his condition in 2009. Anthony’s father requested that his insurance provider, Independence Blue Cross (“IBC”), provide Anthony with ABA at school on August 25, 2009. IBC’s mental health administrator, Magellan Health Services denied the request on the grounds that the plan explicitly excluded coverage for benefits provided in schools.
As of January 1, 2010, Pennsylvania law (“Act 62”) required health insurance policies to provide treatment for autism spectrum disorders, including applied behavioral analysis. On July 1, 2010, Anthony’s health plan converted to a self-funded policy that was no longer subject to the requirements of Act 62.
Anthony’s father sought relief in court regarding whether IBC was required to provide Anthony with ABA from January 1, 2010, when Act 62 went into effect, through July 1, 2010, when Anthony’s plan converted to a self-funded policy.
Under Act 62, coverage for treatment for ASD was still “subject to . . . general exclusions . . . to the same extent as other medical services or programs covered by the policy are subject to those provisions.” IBC used this provision to argue that its exclusion for services provided in schools was the sort of “general exclusion” that was permitted by Act 62. The court rejected this argument and pointed out that ABA was explicitly covered under Act 62, and therefore could not be one of the permitted “general exclusions” even though the ABA requested was to be provided in a school setting.
Relying on a rule of statutory construction that a general statement in legislation should not detract from a specific statement, the court held that the specific language of the treatment provision of Act 62 requiring ABA, speech language pathology, occupational therapy and other services was controlling over the allowance for general exclusions. IBC could not use the “general exclusions” provision of Act 62 to avoid paying for Anthony’s ABA in school, and IBC was required to cover Anthony’s ABA from January 1, 2010 through July 1, 2010.
This is another case where attorneys advocating for children with ASDs sued a health insurance company for denying ABA. Our cases in California, led by Arce v. Kaiser Foundation Health Plan, will confirm that ABA is covered under California’s Mental Health Parity Act and that health insurance companies in California are required to cover ABA and speech therapy for children with ASDs.