Burke Ex Rel. Burke v. Independence Blue Cross

J. A11007/15

2015 PA Super 235

ANTHONY BURKE, : IN THE SUPERIOR COURT OF
BY HIS PNG JOHN BURKE : PENNSYLVANIA
:
v. :
:
INDEPENDENCE BLUE CROSS, : No. 2299 EDA 2011
:
Appellant :

Appeal from the Order Entered July 19, 2011,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. February Term, 2010, No. 002226

BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.

OPINION BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 13, 2015

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-service 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

* Former Justice specially assigned to the Superior Court.
J. A11007/15

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 the 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 plaintiff’s 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

-2-
J. A11007/15

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 “[c]overage 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,

-3-
J. A11007/15

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 1st being the
anniversary date of the Independence
Blue Cross policy in question.

3. Effective July 1, 2010, the [c]overage
provided both Suzanne M. [B]urke 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

-4-
J. A11007/15

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, 103 A.3d 1267, 1270 (Pa. 2014). The court in Burke decided that a

well-recognized exception to the mootness doctrine applied, i.e., 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, “we have before us a narrow, focused,
purely legal issue in sharp controversy” between the
parties, in which the salient legal analysis is
unaffected by the extra-record circumstances raised
by Insurer. [Rendell v. Pa. State Ethics Comm’n,
983 A.2d 708, 718 (Pa. 2009).] Additionally, the
interpretive question involved affects potentially

-5-
J. A11007/15

thousands of individuals across the Commonwealth
diagnosed with autism-spectrum disorders within the
context of an enactment governing insurance
coverage for those individuals. Under these
circumstances, we find it appropriate to undertake
the evaluative task raised by the underlying facts
relative to the availability of judicial review.

Id. at 1271-1272.

Our supreme court in Burke then went on to determine that the

statute was not ambiguous, but was apparently the result of legislative

oversight. Obviously, an agency order “disapproving a denial” of coverage

would never be appealed by an insured individual because it represents a

decision that coverage should be provided. Id. at 1273. While the statutory

text provides that “An insurer or covered individual” may appeal a decision

disapproving a denial or partial denial, only one of the parties given this

right (the insurer) would ever have cause to exercise it. Id. An insured

individual would never be aggrieved by such a disapproval. Id. Ultimately,

the court in Burke held that while it could not simply rewrite the statute

under the guise of statutory construction to read, “approving or

disapproving,” which is surely what was intended, individuals in Burke’s

position must have access to a judicial forum and the Declaratory Judgments

Act provided the trial court with original jurisdiction. Our supreme court

then remanded the matter back to this court to consider the merits of the

appeal.

IBC has raised the following issues on appeal:

-6-
J. A11007/15

A. Must the decision of the trial court to grant
prospective relief to [Burke], who was no
longer insured by [IBC] at the time of the
decision, be vacated on the grounds of
mootness?

B. Did the trial court err in dismissing [Burke]’s
motion for judgment on the pleadings in favor
[of] a hybrid procedure of stipulated facts and
briefing of the legal issue sanctioned pursuant
to the Quality Health Care Accountability and
Protection Action Act, 40 P.S. § 991.2101, and
the statute mandating coverage for autism
services, 40 P.S. § 764h?

C. Assuming that the action and decision were not
moot, and the procedure utilized by the trial
court was authorized, did the trial court
commit an error of law in determining that the
policy’s general exclusion for services rendered
in a school was unenforceable pursuant to
40 P.S. § 764h?

IBC’s brief at 4.

Initially, we must determine whether this appeal is moot. As stated

above, in Burke, our supreme court found an exception to the mootness

doctrine for purposes of addressing the narrow issue of the right of judicial

review. However, IBC claims the underlying issue, whether or not Act 62

provides coverage despite the policy’s place of service exclusion, is still moot

because the Burkes are no longer insured by IBC and they made no demand

for monetary damages during the six-month period in question, January 1,

2010 to July 1, 2010. IBC argues that their complaint and motion for

judgment on the pleadings requested prospective relief only, and the Burkes

shifted to a self-insured plan as of July 1, 2010. (IBC’s brief at 11-12.)

-7-
J. A11007/15

According to IBC, the Burkes did not allege that any ABA services had, in

fact, been provided to Anthony at his parochial school, and they did not seek

any damages for out-of-pocket costs incurred in paying for ABA services

after IBC denied their request for school-based ABA services. (Id.) Thus,

IBC contends that the entire matter is moot and there is no justiciable

controversy between the parties.

The mootness doctrine requires that there is an
actual case or controversy at all stages of review.
Pilchesky v. Lackawanna Cnty., 624 Pa. 633, 88
A.3d 954, 964 (Pa.2014). “[A]n issue may become
moot during the pendency of an appeal due to an
intervening change in the facts of the case[.]” Id.
“An issue before a court is moot if in ruling upon the
issue the court cannot enter an order that has any
legal force or effect.” Johnson v. Martofel, 797
A.2d 943, 946 (Pa.Super.2002). Appellate courts in
this Commonwealth have recognized three
exceptions, permitting decision on an issue despite
its mootness: “1) the case involves a question of
great public importance, 2) the question presented is
capable of repetition and apt to elude appellate
review, or 3) a party to the controversy will suffer
some detriment due to the decision of the trial
court.” In re D.A., 801 A.2d 614, 616
(Pa.Super.2002) (en banc) (citations omitted).

Selective Way Ins. Co. v. Hospitality Group Services,

Inc., A.3d , 2015 WL 4094398 at *3 (Pa.Super. 2015) (en banc).

“Therefore, if the issues raised by an appeal are ‘substantial questions’ or

‘questions of public importance,’ and are capable of repetition, yet likely to

evade appellate review, then we will reach the merits of the appeal despite

-8-
J. A11007/15

its technical mootness.” In re Duran, 769 A.2d 497, 502 (Pa.Super. 2001)

(citation omitted).

Here, we agree with Burke that the issue is of great public importance

and should be addressed. Our supreme court, as stated above, has already

noted the prevalence of autism-spectrum disorder diagnoses and the

significant amount of time that typically elapses between denial of coverage

and when the appellate courts finally rule on the permissibility of such

denial. Anthony Burke’s right under Act 62 to receive autism services in

school raises a question of substantial public importance as it affects

potentially tens of thousands of Pennsylvania schoolchildren. (Burke’s brief

at 15.) In addition, as Burke points out, this is purely a question of

statutory construction and does not implicate constitutional concerns, which

Pennsylvania courts have been loathe to address abstractly. (Id.) See

In re Gross, 382 A.2d 116, 120 (Pa. 1978) (expressing the court’s special

reluctance to consider moot questions which raise constitutional issues). As

such, we will proceed to address the merits of the claims raised on appeal.

Turning briefly to IBC’s second issue on appeal, it claims that Burke’s

statutory appeal was an appeal de novo and that the trial court erroneously

limited its scope of review to matters included in the record before the

external reviewer, IPRO. (IBC’s brief at 17.) According to IBC, by limiting

its consideration to the record before IPRO, the trial court prevented IBC

from developing facts to prove that Burke did not have coverage in the first

-9-
J. A11007/15

instance. (Id. at 19-20.) For example, IBC contends that there was no

evidence a treatment plan was in place for Anthony Burke as required by the

autism statute; he never alleged the providers he intended to utilize to

provide ABA services were licensed to do so pursuant to the statute; and

there was no evidence in the record that Burke’s parochial school would

permit a classroom aide to accompany him throughout the school day. As

such, IBC argues that there was no proof the coverage mandated by the

statute could be afforded to Burke in the first instance. (Id. at 18-19.)

IBC’s procedural objections as to the form of the action have been

resolved by our supreme court. As described supra, while Burke could not

take a statutory appeal from an order approving a denial of coverage, by the

plain and unambiguous language of Section 764h(k)(2), Burke’s complaint is

properly considered as an original-jurisdiction action seeking declaratory and

injunctive relief. Burke, 103 A.3d at 1274-1275. “Declaratory judgments

are nothing more than judicial searchlights, switched on at the behest of a

litigant to illuminate an existing legal right, status or other relation.”

Wagner v. Apollo Gas Co., 582 A.2d 364, 365 (Pa.Super. 1990), quoting

Doe v. Johns-Mansville Corp., 471 A.2d 1252, 1254 (Pa.Super. 1984).

“Under the Declaratory Judgment Act, ‘[c]ourts . . . have the power to

declare rights, status and other legal relations whether or not further relief is

or could be claimed.’” Id. at 365-366, quoting 42 Pa.C.S.A. § 7532

(emphasis deleted).

- 10 -
J. A11007/15

Here, the narrow issue to be decided by the trial court was whether

Act 62 required IBC to cover Burke’s in-school ABA services during the

relevant policy period, irrespective of the contractual exclusion. The issue

was one of statutory construction. Questions of fact, including whether

Burke had an appropriate treatment plan in place, and whether the autism

service providers he intended to utilize were licensed by the Commonwealth,

cannot be decided by this court, as this court is not a fact-finding tribunal.

To the extent they are not rendered moot by the fact that Burke is no longer

insured by IBC and has not pled specific damages, these questions will have

to be resolved on remand by the trial court. As Burke points out, there was

no reason to present claims for reimbursement to IBC when pre-service

requests for authorization had already been denied. (Burke’s brief at 8.)

Now that the issue of IBC’s contractual exclusion of coverage of in-school

services is decided, the case can be remanded for a determination as to

whether any services were actually provided to Burke during the stipulated

time period and what, if anything, he had to pay out-of-pocket for services

rendered.

We now turn to the central inquiry in this case, whether Act 62

provides for coverage of ABA services in school, despite IBC’s general policy

exclusion. Act 62 provides, in relevant part, as follows:

§ 764h. Autism spectrum disorders coverage

(a) A health insurance policy or government
program covered under this section shall

- 11 -
J. A11007/15

provide to covered individuals or recipients
under twenty-one (21) years of age coverage
for the diagnostic assessment of autism
spectrum disorders and for the treatment of
autism spectrum disorders.

40 P.S. § 764h(a).

(14) “Treatment of autism spectrum
disorders” shall be identified in a
treatment plan and shall include
any of the following medically
necessary pharmacy care,
psychiatric care, psychological
care, rehabilitative care and
therapeutic care that is:

(i) Prescribed, ordered or
provided by a licensed
physician, licensed
physician assistant,
licensed psychologist,
licensed clinical social
worker or certified
registered nurse
practitioner.

(ii) Provided by an autism
service provider.

(iii) Provided by a person,
entity or group that
works under the
direction of an autism
service provider.

(15) “Treatment plan” means a plan for
the treatment of autism spectrum
disorders developed by a licensed
physician or licensed psychologist
pursuant to a comprehensive
evaluation or reevaluation
performed in a manner consistent
with the most recent clinical report

- 12 -
J. A11007/15

or recommendations of the
American Academy of Pediatrics.

40 P.S. § 764h(f)(14), (15).

(2) “Autism service provider” means
any of the following:

(i) A person, entity or
group providing
treatment of autism
spectrum disorders,
pursuant to a
treatment plan, that is
licensed or certified in
this Commonwealth.

(ii) Any person, entity or
group providing
treatment of autism
spectrum disorders,
pursuant to a
treatment plan, that is
enrolled in the
Commonwealth’s
medical assistance
program on or before
the effective date of
this section.

40 P.S. § 764h(f)(2).

(12) “Rehabilitative care” means
professional services and treatment
programs, including applied
behavioral analysis, provided by an
autism service provider to produce
socially significant improvements in
human behavior or to prevent loss
of attained skill or function.

40 P.S. § 764h(12).

- 13 -
J. A11007/15

(1) “Applied behavioral analysis”
means 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.

40 P.S. § 764h(f)(1).

However, Act 62 contains the following limiting provision:

(c) 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.

40 P.S. § 764h(c).

As noted above, IBC’s policy contains a general school exclusion

providing that, “[N]o benefits will be provided for services, supplies or

charges: For care in a nursing home, home for the aged, convalescent

home, school, institution for retarded children, Custodial Care in a Skilled

Nursing Facility.” IBC argued that it excludes services provided in these

settings as a form of quality control, because it is unable to monitor the

services as they are being delivered. (Trial court opinion, 7/10/11 at 3.)

“IBC argues that because it does not provide these services for any sufferers

- 14 -
J. A11007/15

of any condition, this policy is a general exemption that relieves them from

providing ABA service ‘in schools’ under § 764h(c).” (Id. at 3-4.)

In interpreting Act 62 to require IBC to provide ABA services in school

despite the general exclusions exception in Section 764h(c), the trial court

relied on the principle that the specific controls the general, i.e., that a more

specific rule or provision will control a later and more general rule or

provision where both apply to the same facts. The trial court found that

delivery of ABA services in a school setting has been proven effective as a

treatment for autism spectrum disorders and IBC’s interpretation would

render meaningless Act 62’s overall mandate that insurance carriers cover

“the treatment of autism spectrum disorders.” (Id. at 9.) Thus, the trial

court determined that the best reading of Act 62 is that Section 764h(a)

controls and limits the operation of Section 764h(c), rather than the reverse.

(Id.)

In so holding, the trial court gave significant weight to the amicus

curiae brief filed by the Pennsylvania Insurance Department and

Pennsylvania Insurance Commissioner (“the Department”), opining that

IBC’s exclusion of any services provided by a school was not a permissible

general exclusion contemplated by Section 764h(c), and to interpret the

statute otherwise would allow the general exclusion to eviscerate the

- 15 -
J. A11007/15

mandate.1 The Department noted that Act 62 mandates coverage for

treatment of autism spectrum disorders, including, specifically, ABA services,

so long as the provider satisfies the basic criteria in the law. (Amicus

curiae brief of Pennsylvania Insurance Department, 7/20/10 at 8.) The

Department concluded that the fact the service is being provided in a school

setting should not be permitted to trump the clear intent of the statutory

mandate: “To permit an insurer to exclude a class of providers (e.g., autism

service providers who provide services in an institutional setting) who

otherwise meet that definition would be in direct conflict with the Autism

Coverage Law.” (Id.) The Department also explained that in Notice 2009-

03, providing guidance on the applicability of the “general exclusions”

language, a distinction was drawn between mere “limitations” on the

provision of services, such as scope and duration limitations, and general

exclusions on services specifically delineated in the Autism Coverage Law.

(Id. at 6-7.) General limitations, such as requiring all medical services to be

provided by a participating provider as a prerequisite for payment of

services, are permissible; however, an insurance carrier is prohibited from

applying a general exclusion to any of the types of services specifically

mentioned in the statute. (Id.) By way of example, the Department stated

1
“We note in this connection that the construction of a statute by those
charged with its execution and application is entitled to great weight and
should not be disregarded or overturned except for cogent reasons, and
unless it is clear that such construction is erroneous.” Appeal of Longo,
132 A.2d 899, 901 (Pa.Super. 1957) (citations omitted).

- 16 -
J. A11007/15

that Section 764h(c) would permit an insurer to deny coverage for

acupuncture treatment, whether or not an autism provider believed it may

provide some benefit to his patient. (Id.)2

We agree with the trial court that there is an inherent ambiguity or

conflict between Section 764h(c), stating that insurers may opt out of

coverage pursuant to a “general exclusion,” and those provisions of Act 62

requiring coverage of treatment of autism spectrum disorders, including ABA

services. As the trial court observes, the Department published a Notice to

2
Those types of services or treatments for autism
spectrum disorders not specified by Act 62 may be
subject to “general exclusions” of a policy pursuant
to 40 P.S. § 764h(c), provided they are excluded “to
the same extent” as for other medical services
covered by the policy. By way of example, if a policy
generally excludes acupuncture treatment, and an
autism provider believes that acupuncture may
provide some benefit to his autism patient, that
particular treatment may nonetheless be excluded
from the mandated coverage.

Id., quoting Notice 2009-03 (emphasis in Department’s brief).

A policy may impose general limitations, such as
scope and duration limitations, on coverage for
autism spectrum disorders so long as such
limitations are imposed “to the same extent” as
those imposed upon other medical services covered
by the policy. For example, if a policy or contract
requires all medical services to be provided by a
participating provider as a prerequisite for payment
of services, autism services may also be required to
be provided by a participating provider as a
prerequisite for payment of those services.

Id. at 7, quoting Notice 2009-03, 39 Pa. Bulletin 1927.

- 17 -
J. A11007/15

address this seeming conflict. (Trial court opinion, 7/10/11 at 4.) (See

Department’s amicus brief at 3 (“on April 11, 2009, the Department issued

Notice 2009-03 to address this very issue, i.e., the correlation of mandated

coverage provisions with general exclusion language in the Autism Coverage

Law.”).) Where there is an ambiguity, we may turn to rules of statutory

construction for guidance.

§ 1921. Legislative intent controls

(a) The object of all interpretation and
construction of statutes is to ascertain and
effectuate the intention of the General
Assembly. Every statute shall be construed, if
possible, to give effect to all its provisions.

(b) When the words of a statute are clear and free
from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its
spirit.

(c) When the words of the statute are not explicit,
the intention of the General Assembly may be
ascertained by considering, among other
matters:

(1) The occasion and necessity for the
statute.

(2) The circumstances under which it
was enacted.

(3) The mischief to be remedied.

(4) The object to be attained.

(5) The former law, if any, including
other statutes upon the same or
similar subjects.

- 18 -
J. A11007/15

(6) The consequences of a particular
interpretation.

(7) The contemporaneous legislative
history.

(8) Legislative and administrative
interpretations of such statute.

1 Pa.C.S.A. § 1921.

In interpreting any statute, appellate courts must
take note of the principles of statutory interpretation
and construction. The principal objective of
interpreting a statute is to effectuate the intention of
the legislature and give effect to all of the provisions
of the statute. 1 Pa.C.S.A. § 1921(a);
Commonwealth v. Drummond, 775 A.2d 849,
855-56 (Pa.Super.2001) (en banc) (stating that
appellate courts must evaluate each section of a
statute because there is a presumption that the
legislature intended for the entire statute to be
operative).

Commonwealth v. Webbs Super Gro Products, Inc., 2 A.3d 591, 594

(Pa.Super. 2010). See also Wilson v. Central Penn Industries, Inc.,

452 A.2d 257, 259 (Pa.Super. 1982) (“In determining the legislative intent,

the sections of a statute must be read together and construed with reference

to the entire statute. A construction which fails to give effect to all

provisions of a statute or which achieves an absurd or unreasonable result

must be avoided.”) (citations omitted). “The canons of statutory

construction require that a statute be read in a manner which will effectuate

its purpose, a task which compels consideration of more than the statute’s

literal words.” Pennsylvania Human Relations Commission v. Chester

- 19 -
J. A11007/15

School Dist., 233 A.2d 290, 295 (Pa. 1967) (citations omitted).

Furthermore,

Whenever a general provision in a statute shall be in
conflict with a special provision in the same or
another statute, the two shall be construed, if
possible, so that effect may be given to both. If the
conflict between the two provisions is irreconcilable,
the special provisions shall prevail and shall be
construed as an exception to the general provision,
unless the general provision shall be enacted later
and it shall be the manifest intention of the General
Assembly that such general provision shall prevail.

1 Pa.C.S.A. § 1933. See also Petition of Turkey Run Fuels, Inc., 95

A.2d 370, 372 (Pa.Super. 1953) (“Where a specific provision follows a

general provision in the same statute, the specific provision prevails and is

construed as an exception to the general provision.”) (citations omitted).

Here, while Act 62 does provide for general exclusions or limitations in

a health insurance policy, it also specifically refers to rehabilitative care

including ABA services. By including ABA services among a specific list of

treatments that insurance carriers must cover, we agree with the trial court

that the legislature did not intend for ABA services to be excluded from

coverage for a particular child because of where those services would be

provided. Clearly, by passing Act 62, the legislature intended to expand

coverage for treatment of autism spectrum disorders, including ABA

services, pharmacy care, psychiatric care, occupational therapy, etc. We

agree with the trial court that by permitting IBC to exclude ABA services

when provided in a school or institutional environment, the legislative

- 20 -
J. A11007/15

mandate would be undermined. See also Burke, 103 A.3d at 1272 n.5

(noting the legislative history of Act 62 including the bill’s sponsor in the

House expressing that the statute “will provide essential protections against

inappropriate denials [of coverage] on the front end, while a new expedited

review process for denied claims will provide those protections on the back

end”; id. at 1274 n.7 (noting that 30 members of the Pennsylvania House of

Representatives submitted an amicus brief stating that they intended for

Act 62 to benefit individuals needing autism services); Governor’s Message,

July 9, 2008 (“By requiring private health insurers to shoulder their fair

share of the cost of treatment, we’re taking steps to address the gap in the

private insurance market and reduce reliance on government programs as

the primary source of services and funding.”). As the trial court noted, while

not binding, the Department’s opinion is entitled to some weight. (Trial

court opinion, 7/10/11 at 10.) The Department’s determination that a

contrary interpretation of Act 62 would trump the intent of the mandate is

supported by the rules of statutory construction.

Finally, we address IBC’s contention that Act 62 must be read in pari

materia with the federal Individuals with Disabilities Education Act (“IDEA”),

20 U.S.C. §§ 1400–1487. “Congress enacted IDEA in 1970 to ensure that all

children with disabilities are provided ‘a free appropriate public education

which emphasizes special education and related services designed to meet

their unique needs [and] to assure that the rights of [such] children and

- 21 -
J. A11007/15

their parents or guardians are protected.’” Forest Grove School Dist. v.

T.A., 557 U.S. 230, 239 (2009) (citations omitted) (footnote omitted).

After examining the States’ progress under IDEA,
Congress found in 1997 that substantial gains had
been made in the area of special education but that
more needed to be done to guarantee children with
disabilities adequate access to appropriate services.
See S.Rep. No. 105-17, p. 5 (1997). The 1997
Amendments were intended ‘to place greater
emphasis on improving student performance and
ensuring that children with disabilities receive a
quality public education.’ Id., at 3. Consistent with
that goal, the Amendments preserved the Act’s
purpose of providing a FAPE to all children with
disabilities.

Id. However, “the IDEA cannot be read to require school districts to provide

on-site services to disabled children voluntarily enrolled in private schools.

To the contrary, school districts have discretion to determine whether to

provide such services on-site.” Russman v. Board of Educ. of City of

Watervliet, 150 F.3d 219, 222 (2nd Cir. 1998). See also KDM ex rel.

WJM v. Reedsport School Dist., 196 F.3d 1046, 1049 (9th Cir. 1999),

cert. denied, 531 U.S. 1010 (2000) (“Every circuit that has considered

whether the IDEA as amended in 1997 requires services to be provided on

site at a private school has concluded it does not.”) (collecting cases).

§ 1932. Statutes in pari materia

(a) Statutes or parts of statutes are in pari materia
when they relate to the same persons or things
or to the same class of persons or things.

(b) Statutes in pari materia shall be construed
together, if possible, as one statute.

- 22 -
J. A11007/15

1 Pa.C.S.A. § 1932. “In order for a Court to read statutes together, it must

be established that the statutes relate to the same thing or the same class of

people.” Buehl v. Horn, 728 A.2d 973, 980 (Pa.Cmwlth. 1999) (citations

omitted).

Here, Pennsylvania’s Act 62 is specifically addressed to the treatment

of autism spectrum disorders including provision of ABA services in an

institutional or school setting by a licensed or certified autism service

provider pursuant to a treatment plan. While there may be some overlap

between the two, we do not consider Act 62 to be in pari materia with the

federal IDEA. As the trial court remarks,

By creating overlapping statutes requiring the
provision of services, the legislature may thus have
chosen to pass some of the cost of ABA services to
insurance carriers (and by extension insurance policy
holders) while still maintaining State sponsored
services for uninsured children. For these reasons, it
is easily imaginable that the General Assembly
intended for both IDEA-associated Statutes and Act
62 to provide overlapping protections by operating in
concert with one another.

Trial court opinion, 7/10/11 at 6.

For these reasons, we conclude that Act 62 requires IBC to provide

ABA services “in school” despite the general exclusion in the insurance

policy. The matter is remanded to the trial court to determine what, if any,

damages Burke may recover.

- 23 -
J. A11007/15

Order affirmed. Remanded for further proceedings consistent with this

Opinion. Jurisdiction relinquished.

Wecht, J. joins the Opinion.

Fitzgerald, J. files a Dissenting Statement.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/13/2015

- 24 -