In a case of first impression, a Philadelphia Court of Common Pleas decision, which has been appealed to Superior Court, could have significant impact on payment for autism related services in a school setting and may provide at least some relief for school districts if insurance carriers are required to pay such services.
In Anthony Burke v. Independence Blue Cross, the Philadelphia Court of Common Pleas ruled that the Pennsylvania Autism Insurance Act (“Act 62”), which became effective on January 1, 2010, requires an insurance carrier, which chooses to cover treatment or service for another type of condition, to cover that same treatment or service for autism service disorders, regardless of setting. Treatment is defined by Act 62 to include rehabilitative care which, in turn, is defined to include applied behavioral analysis, speech language pathology, occupational therapy and a number of other services. Applied behavioral analysis is also 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 skills or function, including the use of direct observation, measurement and functional analysis of the relations between environment and behavior. Providing applied behavioral analysis services in a school environment has been proven effective as a treatment for autism spectrum disorder.
Since Act 62 specifically identifies the above autism treatment and its importance in the school environment, the general exclusion of payment for services in a school setting, which normally governs the application of health insurance policies, does not apply to Act 62. The Judge in Burke noted that there was an overlap between IDEA and Act 62, but ultimately decided that the Legislature, by creating overlapping statutes, purposely chose to pass some of the cost of applied behavioral analysis services to the insurance carrier. If upheld on appeal to the Superior Court, this decision could have significant impact on funding for autism services in the school setting and thereby relieve some of the financial burden on school districts in providing these services.
Our office will continue to closely monitor the status of this appeal and provide future updates on its impact on school districts. However, while the appeal is pending, school district inquiry into applicable insurance coverage could prove beneficial in the search for funding for special education services. Keep in mind that Act 62 does not apply to self-funded health care programs but is applicable to fully-funded insurance policies.