()

The statute governing health insurance coverage for in-school treatment of autism spectrum disorders is unambiguous and bars appeal of a denial, an insurance carrier argued Wednesday before the state Supreme Court in Harrisburg, Pa.

But the lawyer representing a family seeking such coverage from their health insurer said Superior Court case law has created an ambiguity that should be resolved in favor of a claimant’s appeal rights.

The arguments were made in Burke v. Independence Blue Cross, which involves whether insurance companies in Pennsylvania have to cover in-school autism care. Attorneys focused on whether the family of a child can appeal a determination to deny the coverage when Act 62, which requires that health insurers cover the treatment of autism spectrum disorders, only allows an insurer or covered individual to appeal an independent review “disapproving a denial or partial denial.”

“The question is whether the statute is ambiguous,” Justice Max Baer said, adding that one section of the law appears to grant appellate rights and another appears to take them away.

William H. Lamb of Lamb McErlane, who argued on behalf of the insurance company, replied that there is a difference between ambiguity and a law that does not provide for a remedy.

“The statute does not give the right of appeal?” Justice J. Michael Eakin asked Lamb during an earlier exchange.

“It does not,” Lamb said. “But if that was an issue they should have raised it. … They should have put the Attorney General’s Office on notice.”

According to Lamb, the General Assembly intended for claimants to be able to pursue appeals based on breach of contract claims. However, since the plaintiffs never alleged that the contract was breached, but only that the carrier was required to cover the in-school care under Act 62, the family’s appeal of the denial must be tossed for lack of jurisdiction, he argued.

According to court documents, plaintiff Anthony Burke, through his parent and natural guardian, John Burke, sought an independent external review by the state Insurance Department to determine whether Independence Blue Cross’ denial of coverage for Anthony Burke’s autism care at school was a violation of passed Act 62, which went into effect in January 2010. The external review supported the denial.

On appeal to the Philadelphia Court of Common Pleas, Judge Idee Fox sided with the statutory interpretation made by the Burkes, as well as the Pennsylvania Insurance Department, 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 spectrum disorders as well.”

In August 2012, the state Superior Court tossed the case, holding Fox never had jurisdiction to reverse the independent reviewer and order Independence Blue Cross to cover the in-school care.

The Supreme Court granted allocatur on the specific issue of whether the General Assembly intended to deprive families with autistic children the right to appeal insurance denials to courts when insurance companies have the ability to appeal, according to the order.

Pennsylvania Health Law Project attorney David G. Gates, arguing on behalf of the plaintiff, contended that the Superior Court’s interpretation meant that an appeal would only be available if the family won their external review. He argued that, while the statute allowed an insurer to appeal, it limited a claimant’s right to appeal. The statute, he said, created an “inherent contradiction.”

Gates further urged the court to determine that the legislature did not intend to limit the right to appeal, and suggested that the language in the section could have been intended as an example of when an insurer must pay for services while an appeal is pending.

The high court, Gates said, should remand the case to the Superior Court to determine whether Act 62 required the carrier to provide coverage for in-school services.

Gates added that the court should find that the case should be exempt from any finding of mootness, because it is an issue of great importance. According to Gates, along with addressing concerns about access to courts, the case also dealt with issues of alleviating the cost of care from public medical programs, and could affect some 10,000 families seeking to have in-school autism treatment covered.

In contrast, Lamb said coverage did not need to be extended into schools because schools do not want insurance carriers to be monitoring nurses, and children will continue to receive care through individualized education programs and other services.

“It’s not as if you are throwing this youngster out without a remedy,” Lamb said.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.