With a new school year beginning, we take a moment to remind families of children with autism spectrum disorders that Pennsylvania requires many health insurance companies to cover Applied Behavioral Analysis (ABA) services in the school setting. Unfortunately, it was only in recent years that commercial health insurers were mandated to cover these important services in schools.
On July 9, 2008, major legislation called the PA Autism Insurance Act (Act 62) passed with the promise of expanded access to autism treatment in the Commonwealth. The law required Medicaid, the Children’s Health Insurance Program (CHIP), and many commercial health insurance plans to cover diagnosis and treatment of autism.
But the passage of legislation does not ensure that the objectives of that legislation will be implemented. Soon after the law was implemented, barriers to accessing treatment emerged. The insurance industry was not ready to concede that they were now mandated to cover ABA services in the home, community, and in school. PHLP discovered that one major insurance plan, Independence Blue Cross, refused to cover services provided by ABA therapists if they were provided in a school setting. With the help of the tireless Burke family, who agreed to be plaintiffs in the lawsuit, PHLP sued Independence Blue Cross in 2010 and thus began a seven-year court battle spanning all levels of state court. Through the leadership of PHLP co-founder David Gates, who brought the litigation, PHLP won victories at every level of our state courts, culminating with the 2017 Pennsylvania Supreme Court decision in Burke v. IBC, which celebrates its fifth anniversary this fall.
In Burke, the Supreme Court concluded that excluding coverage of ABA in schools was impermissible, as it would substantially undermine the purpose of Act 62, since the effectiveness of ABA treatment depends on evaluations and modifications in various environments, especially in school. In the Court's opinion, Chief Justice Saylor wrote: “we simply do not believe that the Legislature intended to permit insurers to exclude coverage in the sensory-laden educational environment where children spend large portions of their days, or to require families to litigate the issue of medical necessity discretely in individual cases to secure such location-specific coverage for the treatment.”
The case was won in part thanks to the legal prowess of Attorney Gates, who prevailed through numerous legal hurdles to his case, including jurisdictional challenges that threatened even getting the case before the state Supreme Court. To get the case heard, Mr. Gates argued that the issue presented was one of first impression (meaning it had not been heard before in our state) as well as being one of such substantial public importance as to require prompt and definitive resolution by the Pennsylvania Supreme Court. The victory in Burke was also made possible by the submission of amicus briefs from prominent organizations like Autism Speaks. As a national organization that was at the forefront of autism advocacy and had a role in Act 62 and similar state autism insurance mandates, Autism Speaks was able to present compelling statistics on the prevalence of autism and its impact on families showing that the issues raised were of great public importance.
Thanks to this landmark Pennsylvania Supreme Court decision, children across Pennsylvania are now entitled to receive ABA services in the school setting. Families seeking additional information about accessing ABA and other autism services in school should contact the PEAL Center at 1-866-950-1040 or the ASERT Resource Center at 1-877-231-4244.