The Pennsylvania Supreme Court has granted allocatur in a case involving whether insurance companies in Pennsylvania have to cover in-school autism care.

The July 11 order granting the appeal in Burke v. Independence Blue Cross is specific to the issue of whether the state General Assembly intended to deprive families with autistic children the right to appeal insurance denials to court when insurance companies have the ability to appeal, according to the order.

A Philadelphia trial judge ruled in July 2011 that, under Act 62, a private health insurer must cover an autistic child for services provided in his school. Just over a year later, however, the Pennsylvania Superior Court reversed that decision, ruling the trial court didn't have jurisdiction to hear the case. Plaintiff Anthony Burke, through his parent and natural guardian, John Burke, appealed the Superior Court's decision.

Burke is being represented by David Gates of the Pennsylvania Health Law Project in Harrisburg. Independence Blue Cross is being represented by Gerald J. Dugan of Dugan, Brinkmann, Maginnis and Pace in Philadelphia along with William H. Lamb and Maureen Murphy McBride of Lamb McErlane in West Chester, Pa. Gates didn't return a call for comment. McBride declined comment.

According to the Superior Court's August 2012 memorandum opinion, the Burkes sought an independent external review by the Insurance Department to determine whether IBC's denial of coverage for Anthony Burke's autism care at school was a violation of the then-recently-passed Act 62. The act requires health insurers cover the treatment of autism spectrum disorders.

The independent review upheld IBC's denial of coverage. Under Act 62, an insurer or covered individual can appeal to a court an independent review "'disapproving a denial or partial denial,'" Senior Judge Robert Colville said for the three-judge Superior Court panel.

Philadelphia Court of Common Pleas Judge Idee C. Fox reversed the decision of the independent reviewer and ordered IBC cover Burke's in-school care. Colville said the Superior Court couldn't reach IBC's issues on appeal because Fox never had the jurisdiction to rule in the case.

"By its provisions, this statute provides an avenue of relief to, inter alia, 'covered individuals' like [Burke]; however, such relief may be sought only from 'an order of an expedited independent external review disapproving a denial or partial denial,'" Colville said. "In this case, the external review did not disapprove a denial or partial denial; it approved the denial of coverage to appellee."

Colville said the trial court erred in accepting the appeal. Judges Kate Ford Elliott and John T. Bender joined him on the panel.

Fox had sided with the statutory interpretation made by the Burkes that Act 62 is "essentially an anti-discrimination provision requiring that if an insurance carrier chooses to cover a type of treatment or service for any other condition, then it must cover that treatment or service for autism service disorders as well," among several other points.

The Burkes did not dispute that the IBC policy excludes coverage for health care in schools. But the Pennsylvania Health Law Project argued Act 62 mandates such coverage because Act 62 specifically states that insurers must pay for rehabilitative care, including applied behavior analysis.

Fox had said the act's language is not unambiguous because one provision of the act says that insurers must pay for applied behavior analysis services and another provision of the act says that general exclusions are allowed under the law.

So Fox turned to the statutory construction rule that the more specific rule in a statute will control a more general rule of the statute.

The act's specific requirement that the treatment of autism spectrum disorders, including applied behavior analysis, be covered by insurers controls over the act's stipulation that insurers are allowed to make general exclusions in coverage of autism treatment, Fox said.

IBC further argued that the act did not require that private insurers pay for autism treatment in schools because other federal and Pennsylvania laws mandate autism treatment in schools. IBC could argue in later proceedings that the Burkes could have received autism services for Anthony Burke in his school through the state government, Fox had said. But that is a mitigation of damages issue, the judge said, not something that supports insurers not providing autism care in schools globally.

Gina Passarella can be contacted at 215-557-2494 or at gpassarella@alm.com. Follow her on Twitter @GPassarellaTLI.