IN THE SUPREME COURT FOR THE COMMONWEALTH OFPENNSYLVANIA

No. 31 EAP 2013

ANTHONY BURKE,

Plaintiff/Appellant,

v.

INDEPENDENCE BLUE CROSS

Defendant/Appellee.

Appeal from Superior Court Order No. 2200 EDA 2011

BRIEF OF AMICUS CURIAE AUTISM SPEAKS

DECHERT LLPCheryl A. Krause (Pa. 90297)Kate W. Ericsson (Pa. 312389)

Karen C. Daly (Pa. 207879)2929 Arch Street

Philadelphia, PA 19104

Attorneys for Amici Curiae Autism Speaks

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TABLE OF CONTENTS

Introduction/Summary of Argument ........................................................................1

Interest of the Amicus Curiae ...................................................................................2

Background ...............................................................................................................3

Autism and Autism Treatment—Applied Behavioral Analysis ...............................3

Autism Insurance Reform Statutes and Procedures In Other States ........................9

The Decision Below................................................................................................11

ARGUMENT ..........................................................................................................12

I. The Superior Court’s Interpretation of Section 764h(k)(2) Cannot Stand....13

A. Ambiguous Statutes Must Be Read In A Matter Consistent WithTheir Legislative History And Other Rules Of StatutoryInterpretation. ......................................................................................13

B. The Legislative History of Section 764h(k)(2) Mandates ReversalOf The Superior Court’s Decision Below...........................................16

C. Prior Reasonable Interpretations By The Relevant AdministrativeAgencies Counsel In Favor Of Reversal .............................................19

D. Section 764h(k)(2) As Interpreted By The Superior Court WouldResult In A Violation of Appellant’s Constitutional Rights ...............21

E. Section 764h(k)(2) Must Be Construed To Avoid The AbsurdResult That Follows From The Superior Court’s Interpretation.........24

II. This Case Presents A Justiciable Controversy ..............................................25

Conclusion ..............................................................................................................29

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TABLE OF AUTHORITIES

CASES

Allstate Life Ins. Co. v. Commonwealth,52 A.3d 1077 (Pa. 2012)...............................................................................14, 15

Alpha Auto Sales, Inc. v. Dep’t of State, Bureau of Prof’l & OccupationalAffairs,537 Pa. 353, 644 A.2d 153 (1994)......................................................................20

Bayada Nurses v. Dept. of Labor and Indus.,607 Pa. 527, 8 A.3d 866 (2010)..........................................................................13

Bd. of Revision of Taxes, City of Phila. v. City of Phila.,607 Pa. 104, 4 A.3d 610 (2010).................................................................... 14, 24

Burke ex. Rel. Burke v. Independence Blue Cross,24 Pa. D. & C. 5th 457 (Com. Pl. Ct. Phila. Cnty. 2011)............................. 11-12

Burke ex. Rel. Burke v. Independence Blue Cross,No. 2299 EDA 2011 (Pa. Super. Ct. Aug. 13, 2011) .........................................12

Burke ex. Rel. Burke v. Independence Blue Cross,71A.3d 249 (Pa. 2013)........................................................................................12

Chanceford Aviation Props. v. Chanceford Twp. Bd. of Supervisors,592 Pa. 100, 923 A.2d 1099 (2007).............................................................. 13-14

Christopher v. Harbury,536 U.S. 403 (2002)............................................................................................23

Commonwealth v. Carela-Tolentino,616 Pa. 423, 48 A.3d 1221 (2012)......................................................................19

Commonwealth v. Nava,966 A.2d 630 (Pa. Super. Ct. 2009)....................................................................26

Commonwealth ex rel. Finken v. Roop,234 Pa. Super. 155, 339 A.2d 764 (1975) ..........................................................26

Driscoll v. Corbett,--- Pa. ---, 69 A.3d 197 (2013)............................................................................22

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Frazier v. W.C.A.B. (Bayada Nurses, Inc.),52 A.3d 241 (Pa. 2012).......................................................................................14

Harrington v. Commonwealth,563 Pa. 565, 763 A.2d 386 (2000).......................................................... 19-20, 23

Janet D. v. Carros,240 Pa. Super. Ct. 291, 362 A.2d 1060 (1976)...................................................26

Love v. Borough of Stroudsburg,528 Pa. 320, 597 A.2d 1137 (1991)....................................................................22

Mayer v. City of Chicago,404 U.S. 189 (1971)............................................................................................23

Pa. Labor Relations Bd. v. State Coll. Area Sch. Dist.,461 Pa. 494, 337 A.2d 262 (1975).......................................................... 15, 24, 25

Parents League for Effective Autism Servs. v. Jones-Kelley,339 F. App’x 542 (6th Cir. 2009) .......................................................................28

Reading Sch. Dist. v. Dep’t of Educ.,875 A.2d 1218 (Pa. Commw. Ct. 2005) .............................................................22

Rivera v. Pa. Dep’t of Corr.,837 A.2d 525 (Pa. Super. Ct. 2003)....................................................................26

Stander v. Kelley,433 Pa. 406, 250 A.2d 474 (1969)......................................................................22

STATUTES AND RULES

1 Pa.C.S. § 1921...........................................................................................16, 20, 24

1 Pa.C.S. § 1922(1) ............................................................................................21, 24

1 Pa.C.S. § 1927.......................................................................................................19

40 Pa.C.S. § 764................................................................................................passim

215 Ill. Comp. Stat. Ann. 5/356z.14 ........................................................................10

460 Ind. Admin. Code. 6-3-5.1 ................................................................................10

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Alaska Stat. Ann. § 21.42.397 ...................................................................................9

Ariz. Rev. Stat. Ann. § 20-826.04, 20-1057.11, 20-1402.03, 20-1404.03 ................9

Ariz. Rev. Stat. Ann. § 20-1057.11...........................................................................9

Ariz. Rev. Stat. Ann. § 20-1402.03............................................................................9

Ariz. Rev. Stat. Ann. § 20-1404.03............................................................................9

Ark. Code Ann. § 23-99-418(a)-(c) ...........................................................................9

Cal. Health & Safety Code § 1374.72 .......................................................................9

Colo. Rev. Stat. Ann. § 10-16-104(1.4).....................................................................9

Conn. Gen. Stat. Ann. § 38a-514b....................................................................... 9-10

Del. Code Ann. Title 18, § 3366..............................................................................10

Fla. Stat. Ann. § 627.6686 .......................................................................................10

Ind. Code Ann. § 27-8-14.2-4(a) .............................................................................10

Ind. Code Ann. §27-13-7-14.7.................................................................................10

Iowa Code Ann. § 514C.28 (1)................................................................................10

Kan. Stat. Ann. § 75-6524 .......................................................................................10

Ky. Rev. Stat. Ann. § 304.17A ................................................................................10

La. Rev. Stat. Ann. § 22:1050..................................................................................10

Mass. Gen. Laws Ann. ch. 32A, § 25 ......................................................................10

Me. Rev. Stat. Title 24-A, § 2768(2) .......................................................................10

Me. Rev. Stat. Title 24-A, § 2847-T........................................................................10

Me. Rev. Stat. Title 24-A, § 4259............................................................................10

Mich. Comp. Laws Ann. § 550.1461e.....................................................................10

Mo. Ann. Stat. § 376.1224.......................................................................................10

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Mont. Code Ann. § 33-22-515(1) ............................................................................10

N.H. Rev. Stat. Ann. § 417-E: 2 ..............................................................................10

N.J. Stat. Ann. § 17:48-6ii .......................................................................................10

N.J. Stat. Ann. § 17:48A-7ff ....................................................................................10

N.J. Stat. Ann. § 17:48E-35.33 ................................................................................10

N.J. Stat. Ann. § 17B:26-2.1cc ................................................................................10

N.J. Stat. Ann. § 17B:27-46.1ii................................................................................10

N.J. Stat. Ann. § 17B:27A-7.16 ...............................................................................10

N.J. Stat. Ann. § 17B:27 A -19.20...........................................................................10

N.J. Stat. Ann. § 26:2J-4.34 .....................................................................................10

N.J. Stat. Ann. § 52:14-17.29p.................................................................................10

N.J. Stat. Ann. § 52:14-17.46.1................................................................................10

N.M. Stat. Ann. § 59A-22-49(A).............................................................................10

N.Y. Ins. Law § 3216...............................................................................................10

Nev. Rev. Stat. Ann. § 689A.0435 ..........................................................................10

R.I. Gen. Laws Ann. § 1355.015 .............................................................................10

S.C. Code Ann. § 38-71-280...................................................................................10

Tex. Ins. Code Ann. § 1355.015 ..............................................................................10

Va. Code Ann. § 38.2-3418.17 ................................................................................10

Vt. Stat. Ann. Title 8, § 4088i..................................................................................10

W.Va. Code § 5-16B-6e...........................................................................................10

W.Va. Code § 33-16-3v ...........................................................................................10

W.Va. Code § 33-24-7k ...........................................................................................10

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W.Va. Code § 33-25A-8j .........................................................................................10

Wis. Stat. Ann. § 632.895(l2m) ...............................................................................10

OTHER AUTHORITIES

Am. Acad. of Pediatrics, AAP Publications Retired and Reaffirmed, 126PEDIATRICS 1622 (2010) .......................................................................................8

Autism Speaks/CDC Workshop, U.S. Data to Evaluate Changes in thePrevalence of Autism Spectrum Disorders (Feb. 1, 2011) ...................................4

CDC Features, Centers for Disease Control and Prevention, New Data onAutism Spectrum Disorders (Mar. 29, 2012)........................................................3

Centers for Disease Control and Prevention, Austism Spectrum Disorders(May 24, 2012)......................................................................................................8

Centers for Disease Control and Prevention, Prevalance of Autism SpectrumDisorders—Autism and Developmental Disabilities Monitoring Network,14 Sites, United States, 2008, 61 MORBIDITY AND MORTALITY WEEKLY

REPORT 1 (Mar. 30, 2012).....................................................................................3

Child and Adolescent Health Measurement Initiative, 2009/10 NationalSurvey of Children with Special Health Care Needs............................................4

Dan Packel, Pa. Justices to Weigh Who Can Appeal Autism Case Denials,Law360 (July 11, 2013), .....................................................................................27

Data Resource Center for Child & Adolescent Health, National Profile ofChildren with Special Health Care Needs and Autism SpectrumDisorders: Key Findings from the 2009/10 NS-CSHCN & 2007 NSCH .............4

H. Cohen, et al., Early Intensive Behavioral Treatment: Replication of theUCLA Model in a Community Setting, 27 J. DEV. BEHAV. PEDIATRICS

S145 (2006)...........................................................................................................7

J.M. Campbell, Efficacy of Behavioral Interventions for Reducing ProblemBehavior in Persons with Autism: A Quantitative Synthesis of Single-subject Research, 24 RES. IN DEVELOPMENTAL DISABILITIES 120 (2003) ...........8

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John McEachin, et al., Long-Term Outcome for Children with Autism whoReceived Early Intensive Behavioral Treatment, 97 AM. J. MENTAL

RETARDATION 359 (1993).....................................................................................7

Laura A. Schieve et al., The Relationship Between Autism and ParentingStress, 119 PEDIATRICS S114 (2007) ....................................................................4

Michael L. Ganz, The Lifetime Distribution of the Incremental SocietalCosts of Autism, 161 ARCHIVES PEDIATRICS ADOLESCENT MED., 343(2007)....................................................................................................................7

Minn. H.F. No. 1233, 88th Leg., 2013 Reg. Sess....................................................10

Nat’l Inst. of Mental Health, A Parent’s Guide to Autism SpectrumDisorder: How is Austism Treated?, (Oct. 26, 2011)..........................................8

O. Ivar Lovaas, Behavioral Treatment and Normal Educational andIntellectual Functioning in Young Autistic Children, 55 J. CONSULTING

CLINICAL PSYCHOL. 3 (1987)................................................................................7

O. Mudford, et al., TECHNICAL REVIEW OF PUBLISHED RESEARCH ON

APPLIED BEHAVIOR ANALYSIS INTERVENTIONS FOR PEOPLE WITH AUTISM

SPECTRUM DISORDER, Auckland University Services (2009) ..............................6

Pa. Const. art. I § 11.................................................................................................22

Pa. Dep’t of Welfare, “Frequently Asked Questions”.............................................21

Pa. Dep’t of Public Welfare, Pennsylvania Autism Needs Assesment AReport #3: Barriers and Limitations to Accessing Services (2011) ...................29

Pa. H.R. Jour., 191st Leg. Sess., No. 74 (2007) ......................................................28

Pa. H.R. Jour., 192nd Leg. Sess., No. 52 (2008) ..............................................passim

Pa. Ins. Bulletin, 39 Pa. B. 3365 (July 4, 2009).......................................................20

Pa. S. Jour., 2008 Reg. Session No. 49 (2008) ........................................................18

Russell Gerney, Equal Protection Under the Pennsylvania Constitution, 42Duq. L. Rev. 455 (2004) .....................................................................................22

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S. Eldevik, et al., Meta-analysis of Early Intensive Behavioral Interventionfor Children with Autism, 38 J. OF CLINICAL CHILD AND ADOLESCENT

PSYCH. 439 (2009) ................................................................................................8

S. Eldevik, et al., Using Participant Data to Extend the Evidence forIntensive Behavioral Intervention for Children with Autism, 115 AM. J.ON INTELL. AND DEVELOPMENTAL DISABILITIES 381 (2010) ................................8

S.M. Myers and C. Plauché Johnson, Management of Children with AutismSpectrum Disorders, 120 PEDIATRICS 1162 (2007)..........................................6, 8

S.J. Rogers & L.A. Vismara, Evidence-based Comprehensive Treatments forEarly Autism, 37 J. OF CLINICAL CHILD AND ADOLESCENT PSYCHOL. 8(2008)....................................................................................................................8

U.S. Dep’t of Health & Human Servs., et al, Mental Health: A Report of theSurgeon General (1999) .......................................................................................9

W.J. Barbaresi, et al., Autism: A Review of the State of the Science forPediatric Primary Health Care Clinicians, 160 ARCHIVES OF PEDIATRIC

AND ADOLESCENT MED. 1167 (2006) ...................................................................8

William Pitsenberger, Sez Who?”: State Constitutional Concerns withExternal Review Laws and the Resulting Conundrum Posed by RushPrudential HMO V. Moran,15 Conn. Ins. L.J. 85 (2008) ...............................................................................10

Introduction/Summary of Argument

Autism Speaks submits this amicus curiae brief in support of the

plaintiff/Appellant Anthony Burke and in aid of the Court’s consideration of the

important public policies at issue.

In a matter with potentially devastating impact to the over 20,000

Pennsylvanians struggling with autism, the Superior Court below held sua sponte,

without benefit of briefing or argument, that Pennsylvania courts lack jurisdiction

over the case based on a novel and unsupportable reading of 40 Pa.C.S. §

764h(k)(2). The Superior Court interpreted Section 764h(k)(2), which was enacted

as part of the Act of July 9, 2008, P.L. 885, No. 62 (“Act 62”) specifically to

protect policyholders requiring healthcare treatment for autism, to authorize

appeals by insurance companies of orders of coverage but to preclude appeals by

policyholders of denials of coverage. That reading renders superfluous the

legislature’s stated intention to provide a right of appeal to “[a]n insurer or covered

individual or an authorized representative,” is contrary to the interpretation of the

relevant agencies of the Commonwealth, and produces an absurd and intolerable

result. For these reasons and as described below, the decision of the Superior

Court should be reversed.

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Interest of the Amicus Curiae

Autism Speaks is the nation’s leading autism science and advocacy

organization. It is dedicated to funding research into autism’s causes, prevention,

treatments, and finding a cure for autism; increasing awareness of autism spectrum

disorders; and advocating for the needs of individuals with autism and their

families.

Autism Speaks has spearheaded the passage of autism insurance reform in

over 30 states and has assisted stakeholders in implementation of these laws.

Autism Speaks worked closely with the Pennsylvania Legislature on the passage of

Act 62, and continues to work within Pennsylvania and nationally to ensure access

to effective interventions (including Applied Behavior Analysis, the therapy sought

by Appellant) as medically necessary healthcare treatment for autism.

The Superior Court’s extraordinary interpretation of Section 764h(k)(2)—

that Section 764h(k)(2) provides a one-sided appeal right in favor of insurers and

prohibits families from appealing denials of coverage—contravenes the anti-

discrimination purpose of the law and eviscerates the enforcement of the critical

statutory protections Autism Speaks and others fought to obtain and the

Pennsylvania legislature intended to grant.

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Background

Autism and Autism Treatments—Applied Behavior Analysis

This case involves the refusal of an insurance company to cover Applied

Behavior Analysis (“ABA”) therapy for a child with autism to be provided at his

parochial school. The trial court held that Act 62 mandated that this therapy be

covered notwithstanding the insurer’s general policy exclusion for care in schools.

Autism is a complex neurodevelopmental disorder that occurs through no

fault of the affected individual or her or his family. Autism is characterized

symptomatically by developmental abnormality in three areas: deficits in

reciprocal social interaction skills; deficits in communication skills; and the

presence of stereotyped behavior, interests, and activities.

Typically manifesting by age three, the current prevalence rate for autism is

approximately 1 in 88 children—a staggering increase from prevalence estimates

of approximately 1 in 5000 a few decades ago.1 An estimated 1 out of 54 boys

and 1 in 253 girls are diagnosed with autism in the United States.2 Prevalence rates

have increased between 10 to 17 percent annually in recent years.3 While some of

1 The 1 in 88 estimate (11.3 per 1,000) represents a 23% increase since 2009. See NewData on Autism Spectrum Disorders, U.S. Centers for Disease Control & Prevention (“CDC”)(Mar. 29, 2012), available at http://www.cdc.gov/Features/CountingAutism/.

2 CDC, Prevalence of Autism Spectrum Disorders — Autism and DevelopmentalDisabilities Monitoring Network, 14 Sites, United States, 2008, 61 MORBIDITY AND MORTALITY

WEEKLY REPORT, at 1 (2012), available at www.cdc.gov/mmwr/pdf/ss/ss6103.pdf.

3 Id.

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this statistical rise has been attributed to improved diagnoses, the best-available

evidence indicates that the substantial increase is actually due to greater incidence

of the disorder.4 More children are diagnosed with autism each year than with

juvenile diabetes, AIDS, and cancer combined.5

Autism affects over two million individuals in the United States, and occurs

in all racial, ethnic, and socioeconomic categories. On average, medical

expenditures for individuals with autism are four to six times greater than for

individuals without autism. Nevertheless, due to difficulties in accessing or

affording care, children with autism are more likely than other special needs

children to delay or forego care entirely. The families of autistic children have

greater out-of-pocket costs, diminished work hours, more lost income, and more

negative health plan experiences.6 Families with autistic children face “unique

stresses,” including depression, anxiety and decreased family cohesion.7

4 Summary of information from Autism Speaks/CDC Workshop, U.S. Data to EvaluateChanges in the Prevalence of Autism Spectrum Disorders (February 1, 2011), available athttp://blog.autismspeaks.org/2011/02/03/s-evaluating-change/.

5 Child and Adolescent Health Measurement Initiative, 2009/10 National Survey ofChildren with Special Health Care Needs, available at http://childhealthdata.org/search?k=prevalence.

6 Data Resource Center for Child & Adolescent Health, National Profile of Children withSpecial Health Care Needs and Autism Spectrum Disorders: Key Findings from the 2009/10 NS-CSHCN & 2007 NSCH, available at http://www.autismspeaks.org/sites/default/files/images/advocacy/State.HHS.survey_3-21-12.pdf.

7 Laura A. Schieve et al., The Relationship between Autism and Parenting Stress, 119PEDIATRICS S114, S115, S121 (2007).

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Scientists do not know what causes autism. Just as there are different levels

of severity and combinations of symptoms in autism, there are probably multiple

causes. The best scientific evidence available points toward a potential for various

combinations of factors causing autism—multiple genetic components that may

cause autism on their own, or possibly when combined with exposure to as-yet

undetermined environmental factors.

Since an unknown cause cannot be the target of treatment or prevention, the

focus of interventions has been on therapies designed to alleviate the debilitating

nature of the symptoms, as tailored for the unique condition of every individual.

Manifest signs and symptoms of autism may often be observed by two to three

years of age or earlier. There is overwhelming consensus within the scientific

community that treatment should begin as soon as possible after diagnosis and that

with intensive treatment, the symptoms of autism can be made less disabling.

In particular, over the last several decades, a therapy known as “ABA” or

Applied Behavior Analysis, has emerged as the most widely prescribed and most

thoroughly validated in scientific literature. ABA is a scientific approach to

understanding behavior and how it is affected by the environment. ABA is

designed to address socially important problems and to bring about meaningful

changes in behavior. In lay terms, ABA builds on principles about how behavior

works, such as the understanding that when a behavior is followed by something

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an individual finds rewarding, the behavior is more likely to be repeated. ABA

uses techniques such as positive reinforcement and scientific observation, data

collection, and analysis mechanisms to bring about meaningful and positive

changes in an individual’s behavior and functional abilities. Individual changes

are then generalized and built upon in a comprehensive and systematic fashion.

ABA therapy relies on reinforced practice of various skills, with the goal of getting

the individual as close to typical development and functioning as possible. In

addition to its intensity, a key feature of ABA treatment is its delivery across a

range of environments and treatment settings (including home, community and

school settings) to insure that improvements in functional abilities are validated,

practical, and generalized.8

Studies have shown that, if ABA therapy is administered intensively and by

properly-trained therapists, approximately half of the treated individuals will

“overcome” their autistic characteristics to such an extent that they can enter

school indistinguishable from their peers. The other half make significant gains,

too, such that they need less support for the rest of their lives. Studies further

indicate that children who do not receive timely and intensive treatment are

8 Mudford, O., et al., TECHNICAL REVIEW OF PUBLISHED RESEARCH ON APPLIED BEHAVIOR

ANALYSIS INTERVENTIONS FOR PEOPLE WITH AUTISM SPECTRUM DISORDER, 11(AucklandUniservices Ltd.) 2009; Myers, S.M., & Plauché Johnson, C. Management of Children withAutism Spectrum Disorders. 120 PEDIATRICS 1164 (2007) (discussing generalization and relevantsettings including home, school and community)

- 7 -

unlikely to ever overcome their condition and each will ultimately cost society $3.2

million dollars over his or her lifetime.9

In a landmark study published in 1987, Dr. Ivar Lovaas of UCLA reported

that 47% of the children who received intensive ABA therapy by properly-trained

therapists achieved normal intellectual functioning and, as a result, could be placed

in mainstream general educational environments with no additional supports. A

further 42 percent of children made substantial gains that significantly reduced

their special education and supports needs.10 Lovaas’s 1987 study was followed in

1993 by another study of the same subjects confirming that these possible results

were maintained over time.11

9 See Michael L. Ganz, The Lifetime Distribution of the Incremental Societal Costs ofAutism, 161 Arch. Pediatrics Adolescent Med., 343 (2007). Recent data from David Mandell ofthe University of Pennsylvania and Martin Knapp of the London School of Economics suggestdirect costs along range from 1.4 to 2.3 million dollars per person.http://www.autismspeaks.org/science/science-news/autism%E2%80%99s-costs-nation-reach-137-billion-year

10 O. Ivar Lovaas, Behavioral Treatment and Normal Educational and IntellectualFunctioning in Young Autistic Children, 55 J. CONSULTING CLINICAL PSYCHOL. 3 (1987); H.Cohen, et al., Early Intensive Behavioral Treatment: Replication of the UCLA Model in aCommunity Setting, 27 J. DEV. BEHAV. PEDIATRICS S145 (2006). In contrast to the 47 percentwho achieved normal IQs with intensive ABA, only 2 percent of the non ABA control groupachieved normal IQs.

11 John McEachin, et al., Long-Term Outcome for Children with Autism who ReceivedEarly Intensive Behavioral Treatment, 97 AM. J. MENTAL RETARDATION 359 (1993).

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Numerous peer-reviewed studies and meta-analyses have confirmed that

ABA is a safe and effective treatment for autism.12 The National Institute of

Mental Health,13 the Centers for Disease Control and Prevention,14 and the

American Academy of Pediatrics15 have all concluded that ABA is effective and

supported by research. The U.S. Surgeon General has found that “[t]hirty years of

research demonstrated the efficacy of applied behavior methods in reducing

12 See, e.g., J.M. Campbell, Efficacy of Behavioral Interventions for Reducing ProblemBehavior in Persons with Autism: A Quantitative Synthesis of Single-Subject Research, 24 RES.IN DEVELOPMENTAL DISABILITIES 120 (2003); S. Eldevik, et al., Meta-analysis of Early IntensiveBehavioral Intervention for Children with Autism, 38 J. CLINICAL CHILD AND ADOLESCENT

PSYCHOL. 439 (2009); S. Eldevik, et al., Using Participant Data to Extend the Evidence forIntensive Behavioral Intervention for Children with Autism, 115 AM. J. ON INTELL. AND

DEVELOPMENTAL DISABILITIES 381 (2010); S.J. Rogers & L.A. Vismara, Evidence-basedComprehensive Treatments for Early Autism, 37 J. OF CLINICAL CHILD AND ADOLESCENT

PSYCHOL. 8 (2008); W.J. Barbaresi, et al., Autism: A Review of the State of the Science forPediatric Primary Health Care Clinicians, 160 ARCHIVES OF PEDIATRIC AND ADOLESCENT MED.160, 1167 (2006).

13 A Parent’s Guide to Autism Spectrum Disorder: How Is Autism Treated?, Nat’lInst. of Mental Health (Oct. 26, 2011), available at http://www.nimnh.nih.gov/health/publications/a-parents-guide-to-autism-spectrum-disorder/how-is-autism-treated.shtml

14 Autism Spectrum Disorders, Ctrs. for Disease Control & Prevention (May 24, 2012),available at http://www.cdc.gov/ncbddd/autism/treatment.html.

15 Myers, S.M. & Plauché Johnson, C., Management of Children with Autism SpectrumDisorders, 120 Pediatrics 1162, 1164 (2007), available athttp://pediatrics.aappublications.org/content/120/5/1162.full.pdf+html (“The effectiveness ofABA-based intervention in ASDs has been well documented through 5 decades of research byusing single-subject methodology and in controlled studies of comprehensive early intensivebehavioral intervention programs in university and community settings.”) This publication wasreaffirmed in September 2010. See Am. Acad. of Pediatrics, AAP Publications Retired andReaffirmed, 126 PEDIATRICS 1622, 1622 (2010), available at http://pediatrics.aapublications.org/content/126/6/e1622.full.pdf+html.

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inappropriate behavior and increasing communication, learning and appropriate

behavior.”16

Although ABA is highly effective, because of the intensity of hours

required, it is typically quite costly. As a result, for many years, ABA was

excluded from coverage by insurance companies even when prescribed by a child’s

treating physician. A typical comprehensive ABA program may involve 40 hours

per week of therapy—therapy that costs far more than what most parents can

afford to pay out-of-pocket. Accordingly, Autism Speaks has been at the forefront

of insurance reform to ensure access to this critical, life-changing treatment that

dramatically improves outcomes for individuals and reduces societal costs for the

taxpayer.

Autism Insurance Reform Statutes and Procedures In Other States

Since 2007, Autism Speaks, along with many supporters across the country,

has spearheaded the passage of autism insurance reform legislation designed to

ensure provision of diagnostic assessments and ABA therapy to affected

individuals, by mandating insurance coverage of those essential services. As of

2013, 34 states and the District of Columbia have passed such legislation. 17

16 U.S. Dep’t of Health & Human Servs. et al., Mental Health: A Report of the SurgeonGeneral 163-64 (1999), available at http://profiles.nlm.nih.gov/ps/retrieve/ResourceMetadata/NNBBHS.

17 Alaska Stat. Ann. § 21.42.397 (West); Ariz. Rev. Stat. Ann. §§ 20-826.04, 20-1057.11, 20-1402.03, 20-1404.03 (West); Ark. Code Ann. § 23-99-418(a)-(c) (West); Cal. Health & Safety

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None of these 35 statutory schemes has a review procedure that restricts (or,

until the Superior Court’s decision in this case, was ever interpreted to restrict)

appellate review to only insurance carrier’s appeals, i.e., to orders of coverage but

not denials of coverage. See William Pitsenberger, Sez Who?: State Constitutional

Concerns with External Review Laws and the Resulting Conundrum Posed by Rush

Prudential HMO V. Moran, 15 Conn. Ins. L.J. 85, 93 (2008) (summarizing review

procedures among the states and concluding that, “[s]ome make clear that both the

insurer and the insured have recourse to remedies through the courts, some purport

to make the decision of the external review entity binding on both the insurer and

the insured without recourse to appeal or other legal remedy, and some make the

decision binding on the insurer but give the insured the right to pursue legal

remedies.”).

Code § 1374.72 (West); Colo. Rev. Stat. Ann. § 10-16-104(1.4) (XIII) (b) (1) (West); Conn.Gen. Stat. Ann. § 38a-514b (West); Del. Code Ann. tit. 18, § 3366 (West); Fla. Stat. Ann. §627.6686 (West); 215 Ill. Comp. Stat. Ann. 5/356z.14 (West); Ind. Code Ann. §§ 27-8-14.2-4(a),27-13-7-14.7 (West); 460 Ind. Admin. Code 6-3-5.1 (West); Iowa Code Ann. § 514C.28 (1)(West); Kan. Stat. Ann. § 75-6524 (West); Ky. Rev. Stat. Ann. §§ 304.17A-142, 143 (West); La.Rev. Stat. Ann. §§ 22:1050(A) (1), (G) (6) (West); Me. Rev. Stat. tit. 24-A, §§ 2768(2), 2847-T,4259 (West); Mass. Gen. Laws Ann. ch. 32A, § 25 (West); Mich. Comp. Laws Ann. § 550.1461e(West); Mo. Ann. Stat. § 376.1224 (West); Mont. Code Ann. § 33-22-515(1) (West); Nev. Rev.Stat. Ann. § 689A.0435 (West); N.H. Rev. Stat. Ann. § 417-E: 2 (West); N.J. Stat. Ann. §§17:48-6ii, 17:48A-7ff, 17:48E-35.33, 17B:26-2.1cc, 17B:27-46.1ii, 17B:27A-7.16, 17B:27 A -19.20, 26:2J-4.34, § 52:14-17.29p, 52:14-17.46.1 (West); N.M. Stat. Ann. § 59A-22-49(A) (l)-(2) (West); N.Y. Ins. Law § 3216 (West); 40 Pa. C.S. § 764h (West); R.I. Gen. Laws Ann. §§ 27-20.11-1, -3 (West); S.C. Code Ann. § 38-71-280 (West); Tex. Ins. Code Ann. § 1355.015 (West);Vt. Stat. Ann. tit. 8, § 4088i (West); Va. Code Ann. § 38.2-3418.17 (West); W.Va. Code §§ 5-16B-6e, 33-16-3v, 33-24-7k, 33-25A-8j (West); Wis. Stat. Ann. § 632.895(l2m). Minnesota’slegislation (HF.1233) was signed into law on May 23, 2013. Seehttp://mn.gov/governor/images/2013_budget_better_mn_healthcare.pdf.

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The Decision Below

As set forth in Appellant’s briefing, and as reflected throughout the record

below, the trial court, the Appellee, the Appellant—as well as the Department of

Insurance—all considered the court to have jurisdiction to reach the important

issues raised in this case. Indeed, based on its “authority to interpret and

implement ‘the laws of this Commonwealth in relation to insurance,’ including

those laws regulating health insurance,” the Department of Insurance and the

Commissioner of Insurance filed a detailed amicus brief addressing the Act 62

coverage issue before the court—specifically, the correlation of specific mandated

coverage provisions in Act 62 with other general exclusions used by an insurer.

Dept. of Ins. Brief, p. 1-2 (R. 368a-377a).

The external review decision that was appealed to the court below failed to

even address this critical issue, but instead assumed the legitimacy of Appellee’s

exclusion regardless of whether it conflicted with Act 62. In its amicus brief, the

Department of Insurance concluded that Appellee’s interpretation, as followed by

the external review panel, “would eviscerate” the general mandate of Act 62. Id.

After carefully weighing the arguments of the parties, the trial court concurred that

Appellee’s interpretation “would render meaningless the mandate that insurance

carriers cover the treatment of autism spectrum disorders,” Burke ex. Rel. Burke v.

- 12 -

Independence Blue Cross, 24 Pa. D. & C. 5th 457, 469 (Com. Pl. Ct. Phila. Cnty.

2011) (internal quotation omitted), and held:

This Court finds that the better interpretation of Act 62 is the one urged byBurke and the Insurance Department. This is because that interpretation bestcomports with the normal canons of statutory construction, avoids thepossible neutering of the Act, and gives weight to the InsuranceDepartment’s interpretation of the General Assembly's intent.

Id. at 467. The Superior Court did not reach a contrary determination on the

merits. Instead, in an unpublished opinion, it concluded sua sponte that it could

not reach these issues because even though plaintiff, as a “covered individual,” had

a right to appeal decisions of an external review panel, he could only appeal

decisions affirming his right to coverage and not decisions denying his right to

coverage. Burke ex. Rel. Burke v. Independence Blue Cross, No. No. 2299 EDA

2011, slip opinion at 3 (Pa. Super. Ct. Aug. 13, 2011).

On July 11, 2013, this Court granted allocator to consider the following

question: “Did the Pennsylvania General Assembly intend to deprive families of

children with autism of the right to appeal insurance denials to court[,] while

granting that right to insurance companies?” Burke ex. rel. Burke v. Independence

Blue Cross, 71 A.3d 249 (Pa. 2013).

ARGUMENT

The Superior Court’s interpretation of Section 764h(k)(2) in this case should

be rejected for three fundamental reasons. First, as an ambiguous statute, Section

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764h(k)(2) must be interpreted consistently with its legislative history and

Pennsylvania’s other rules of statutory construction. See Sections I.A-I.B, infra.

Second, the interpretations of the relevant administrative agencies firmly support

the finding of a right to appeal for policyholders in § 764h(k)(2). See Section I.C,

infra. Third, reading § 764h(k)(2) to provide a right to appeal only to insurance

carriers and not policyholders would violate the U.S. and Pennsylvania

Constitutions, see Section I.D, infra, and would lead to an absurd and unreasonable

result, see Section I.E, infra. Furthermore, to the extent Appellee argues the case is

not justiciable on mootness grounds, that argument should be rejected on the basis

of the exception for “issues of great public importance.” See Section II, infra.

I. The Superior Court’s Interpretation of Section 764h(k)(2) CannotStand

A. Ambiguous Statutes Must Be Read In A Matter Consistent WithTheir Legislative History And Other Rules Of StatutoryInterpretation

When called upon to interpret and construe a statute, the Commonwealth’s

courts seek to “ascertain and effectuate the intention of the legislature.” Bayada

Nurses v. Dept. of Labor and Indus., 607 Pa. 527, 551, 8 A.3d 866, 880 (2010)

(citing 1 Pa.C.S. § 1921(a)). When the statutory language is “clear and free from

all ambiguity,” the plain language controls.18 Chanceford Aviation Props. v.

18 While appellant has assumed that the statutory language is ambiguous, the express termsof § 764h(k)(2)—which control where clear and unambiguous—provide for the right of coveredindividuals and/or their authorized representatives to take an appeal. The Superior Court’s

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Chanceford Twp. Bd. of Supervisors, 592 Pa. 100, 107-08, 923 A.2d 1099, 1104

(2007) (citations omitted). However, where any ambiguity is present,

Pennsylvania courts turn to well-recognized tools of statutory interpretation to

determine the General Assembly’s intent. See Allstate Life Ins. Co. v.

Commonwealth, 52 A.3d 1077, 1080-81 (Pa. 2012) (“When, however, the words of

a statute are ambiguous, a number of factors are used in determining legislative

intent.”).

Section 764h(k)(2) is ambiguous in at least two respects in defining the

circumstances in which “[a]n insurer or covered individual or an authorized

representative may appeal to a court of competent jurisdiction . . . .” First, while

appeals are permitted from “an order of an expedited independent external review

disapproving a denial or partial denial,” the italicized phrase is rendered

ambiguous due to the ungrammatical use of a double negative. Further lack of

clarity is injected by the phrase “partial denial,” which begs the question of

whether a judicial appeal is available when a prior denial of coverage is approved

in part, i.e., a “partial approval.” Second, assuming that “disapproval of a denial”

interpretation, however, would render that provision meaningless and therefore cannot stand inthe face of basic rules of statutory construction. See Frazier v. W.C.A.B. (Bayada Nurses, Inc.),A.3d 241, 245 (Pa. 2012) (“Additionally, this Court should construe statutes to give effect to allof their provisions, and should not ignore language nor render any portion of the statutesuperfluous.”); see also Bd. of Revision of Taxes, City of Phila. v. City of Phila., 607 Pa. 104,125, 4 A.3d 610, 622 (2010) (“Governing presumptions are that the General Assembly intendedthe entire statute at issue to be effective and certain, and that the General Assembly does notintend an absurd result or one that is impossible of execution.”).

- 15 -

equates to an approval of coverage (and that itself is unclear, since subsection

(k)(2), unlike subsection (k)(1), does not specify denials “by an insurer”), a

covered individual would have no reason to appeal. This would render the clearly

expressed right of such individuals to appeal meaningless, which is precisely the

sort of internal inconsistency that this Court previously has found gives rise to

statutory ambiguity. See, e.g., Pa. Labor Relations Bd. v. State Coll. Area Sch.

Dist., 461 Pa. 494, 502-03, 337 A.2d 262, 266 (1975) (determining that a statutory

inconsistency rendered a statute ambiguous).19

One thing is clear—this is not a statute that unambiguously precludes

covered individuals from seeking judicial review of an adverse administrative

decision. It clearly and expressly grants such a right in at least a subset of

circumstances. Indeed, appellee never even thought to challenge the courts’

jurisdiction, underscoring that a covered individual’s supposed lack of appellate

rights under § 764h(k)(2) is far from clear-cut. This statutory ambiguity thus

triggers the application of rules of statutory construction and presumptions set forth

19 The facial ambiguity of the statute at hand distinguishes it from the statute at issue inAllstate Life Insurance Company v. Commonwealth, 52 A.3d 1077 (Pa. 2012), where theSupreme Court split evenly on whether a section of the Guaranty Association Act wasambiguous. Those who held against ambiguity reasoned that, even if the language wasinconsistent with the intended result of the statute, the plain language within the statutory sectionin question was itself clear. In the case at bar, the relevant Act 62 language, under appellee’sinterpretation, is inconsistent on its face and not only in relation to the larger statutory scheme.

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in 1 Pa.C.S. § 1921 and § 1922. The application of these rules and presumptions

mandates reversal of the decision below.

B. The Legislative History of Section 764h(k)(2) Mandates ReversalOf The Superior Court’s Decision Below

When a statute is ambiguous, this Court will turn to the factors set forth in

§ 1921, which focus on legislative purpose and history.20 In fact, “[t]he object of

all interpretation and construction of statutes is to ascertain and effectuate the

intention of the General Assembly.” 1 Pa.C.S. § 1921(a). Here, the record is clear

that in enacting Section 764h(k)(2), the Legislature intended to both end

discrimination by insurers in providing coverage for autism treatment and prevent

insurers from shifting their responsibilities under the law to the public purse. A

meaningful right to judicial appeal by policyholders is essential to carry out these

intentions.

The Legislature was highly cognizant of insurance carriers’ past improper

use of exclusions to deny treatment for children with autism. See Pa. H.R. Jour.,

192nd Leg., No. 52, 1709, 1735 (2008) (discussing creating “more precise

definitions of mandated care” in order to “prevent the use of [an insurer’s self-

20 Under 1 Pa.C.S. § 1921(a), this Court considers: (1) The occasion and necessity for thestatute; (2) The circumstances under which it was enacted; (3) The mischief to be remedied; (4)The object to be obtained; (5) The former law, if any, including other statutes upon the same orsimilar subjects; (6) the consequences of a particular interpretation; (7) the contemporaneouslegislative history; and (8) legislative and administrative interpretations of such statute. Amicusjoins in appellant’s arguments as to these provisions, see Appellant’s Brief (“App. Br.”) at 29-36,and writes to reinforce the significance of the legislative record to this case.

- 17 -

defined] medical necessity standards to deny coverage.”). Indeed, as the Speaker

of the House and sponsor of the bill stated, “private health insurers in Pennsylvania

have systematically excluded coverage for treatment and support services to those

with an autism spectrum disorder (ASD). This is outrageous and discriminatory.

HB 1150 will finally give families in Pennsylvania who are affected by autism

some relief from this discrimination.” Id. at 1734.

The Act was designed to require “that insurance companies shoulder a fair

share of covering autism treatments that Medical Assistance currently covers .” Id.

at 1735 (remarks of Speaker of the House, Dennis O’Brien). One of the

Legislature’s primary concerns was that if insurers were not required to share this

burden, the Commonwealth’s Medical Assistance program would become

overwhelmed and fiscally unable to keep up with the increasing need for autism

services. See id at 1736.

In order to implement these expressed legislative goals, the statute provided

two types of “essential protections” for insured families: clear and broad

“definitions of mandated care . . . provide essential protections against

inappropriate denials on the front end, while a new expedited review process for

denied claims will provide those protections on the back end.” Id. That review

process expressly was intended to include the right to a judicial appeal. As stated

by Senator Williams, the review and appeal process was designed as “protection to

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those who are worried about whether they can actually use the insurance or

whether the insurer can arbitrarily or capriciously apply standards.” Pa. S. Jour.,

2008 Reg. Sess. No. 49, 2309, 2315. Senator White concurred that the appeal

rights were especially favorable and “this does not happen with any other health

malady we have in Pennsylvania”; “nobody has the freedom and the appeal

process this autistic mandate has. None.” Id. at 2314, 2316.

Against this backdrop and articulated legislative concern to prevent

discriminatory denials of coverage, it is unfathomable that the General Assembly

intended Section 764h(k)(2) to grant appellate rights only to insurance carriers

while precluding policy holders from seeking appellate review. Indeed, multiple

legislators, including the principal sponsor of and floor leader for Act 62, have

weighed in to affirm that it was never the intent of the legislature to deny insureds

the right to appeal a denial of coverage. See Br. of Amici Curiae, Members of the

Pa. House of Reps., in Support of Appellant, Anthony Burke, a Minor Through His

Father, John Burke; Br. of Amicus Curiae Dennis M. O’Brien in Support of

Reversal.

Such a one-sided right to appellate review would be unprecedented, both in

Pennsylvania and across the country. As of 2008, when Act 62 was being

considered (and to this day), no other state had a one-sided judicial review regime

favoring insurance companies. See supra at Section I.A. If the Pennsylvania

- 19 -

legislature had intended to adopt such a radical and discriminatory departure, it

surely would have acknowledged as much. To the contrary, Act 62 was intended

to be the “gold standard” for the country and to have a superior process of review,

among other features. None of the other states’ autism mandates at that time had

adopted such a discriminatory appeal procedure, nor have any since. Cf. 1 Pa.C.S.

§ 1927 (“Statutes uniform with those of other states shall be interpreted and

construed to effect their general purpose to make uniform the laws of those states

which enact them.”). Had Pennsylvania legislators intended to take such a

divergent and discriminatory approach, that almost certainly would have been

debated or at least mentioned in the legislative history. Yet, the legislative history

is utterly devoid of even a reference, reflecting the lack of such intent. See

Commonwealth v. Carela-Tolentino, 616 Pa. 423, 428, 48 A.3d 1221, 1225 n.4

(2012) (citing absence of legislative history).

In sum, the legislative history of Section 764h(k)(2) compels the conclusion

that it was intended to allow covered individuals, as well as insurers, the right to

appeal an adverse determination to a court of competent jurisdiction.

C. Prior Reasonable Interpretations By The Relevant AdministrativeAgencies Counsel In Favor Of Reversal

When interpreting a statute, courts are required to give deference to

administrative interpretations by the agencies charged with enforcement of that

statute. See Harrington v. Commonwealth, 563 Pa. 565, 577, 763 A.2d 386, 393

- 20 -

(2000) (“we are obliged to construe legislative enactments . . . to give deference to

valid administrative interpretations by agencies charged with enforcement

responsibilities.”) (citing Bor. of Pottstown v. Pa. Mun. Ret. Bd., 551 Pa. 605, 611,

712 A.2d 741, 744 (1998)); Alpha Auto Sales, Inc. v. Dep’t of State, Bureau of

Prof’l & Occupational Affairs, 537 Pa. 353, 357, 644 A.2d 153, 155 (1994) (“The

proper place to begin the appropriate inquiry is . . . with due deference to the views

of the regulatory agency directly involved in administering the statute in

question.”). Further, Pennsylvania’s statutes themselves require consideration of

legislative and administrative interpretations when interpreting the meaning of an

ambiguous statute. See 1 Pa.C.S. § 1921(c)(8).

Both the Pennsylvania Department of Insurance and the Pennsylvania

Department of Welfare have interpreted Act 62 to provide broad and

comprehensive appeal rights. For example, in a July 2009 Bulletin, the

Department of Insurance advised that although Act 62 specifically referenced only

procedures for expedited external reviews, the Department did not interpret the

statute as precluding non-expedited review processes. 39 Pa. B. 3365 (July 4,

2009). In a similar vein, the Department of Insurance has made clear in past

judicial filings that it supports the broader coverage for treatment sought by

Appellant. See R. 368a-377a (amicus curiae brief of the Department of Insurance

filed in the Common Pleas Court below). Based on that record below, the

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Department of Insurance has not interpreted the statute to provide a one-sided right

of appeal, contrary to the Superior Court’s sua sponte decision.

Additionally, the Department of Welfare put out “Frequently Asked

Questions” guidance in 2009 advising of broad appeal rights under Act 62:

If my insurance company denies my child’s autism diagnostic ortreatment services, where can I go for help?

Families can appeal any denial or partial denial of an autism diagnostic ortreatment service to your insurance company and obtain a decision on anexpedited basis. If your appeal is denied by the insurance company, yourfamily can appeal for an independent, external review. If the independentexternal review denies your appeal, you can further appeal to a court ofcompetent jurisdiction.

http://autism-support.org/wp-content/uploads/2011/05/PA_Act_62_FAQ.pdf

(emphasis added).

These administrative interpretations thus provide additional evidence that

Section 764h(k)(2) is properly interpreted to provide for a full right to appeal by

insureds as well as insurers.

D. Section 764h(k)(2) As Interpreted By The Superior Court WouldResult In A Violation of Appellant’s Constitutional Rights

Pursuant to 1 Pa.C.S. § 1922(3), it is presumed that the General Assembly

intended to comport with the Constitutions of the United States and the

Commonwealth. The Superior Court’s decision thus should be reversed for the

additional reason that it does not comport with that presumption and would result

in violations of the state and federal Constitutions.

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Pennsylvania recognizes a fundamental right of equal access by its citizens

to courts as part of its Declaration of Rights. See Pa. Const. Art. I § 11; see also

Reading Sch. Dist. v. Dep’t of Educ., 875 A.2d 1218, 1222 (Pa. Cmwlth. 2005),

app. granted, 586 Pa. 718 (2005) (the Department of Education’s interpretation of

the federal No Child Left Behind Act to limit the right of the school district to

appeal violated the school district’s constitutional rights). The right to be treated

equally by the law—i.e., the right to equal protection—is also one of the inherent

rights recognized by Article I. See Love v. Borough of Stroudsburg, 528 Pa. 320,

324-25, 597 A.2d 1137, 1139 (1991); see generally Russell Gerney, Equal

Protection Under the Pennsylvania Constitution, 42 Duq. L. Rev. 455 (2004)

(discussing the multiple sources of equal protection rights under the Pennsylvania

Constitution).

Because the rights that are recorded in Article I are “inherent” and

“indefeasible,” these rights cannot be revoked by any law—not even by a

constitutional amendment. See, e.g., --- Pa. ---, Driscoll v. Corbett, 69 A.3d 197,

209 (2013) (recognizing that a provision in the Pennsylvania Constitution could be

found to violate the inherent rights recognized in Article 1); Stander v. Kelley, 433

Pa. 406, 413, 250 A.2d 474, 478 (1969) (“A citizen’s constitutional rights can

hardly be infringed simply because a majority of the people choose that it be”). A

fortiori, a law such as the one at issue here, which is shrouded in ambiguity and

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was clearly not intended to deprive individuals of these rights, see supra at Section

I.A, cannot abrogate the fundamental rights of Appellant and similarly situated

individuals to have the identical access to appeal a finding of the independent

review board as do private insurance companies. Both the fundamental rights of

open access to courts and equal protection under the law would be rendered

meaningless as to a vulnerable class of citizens—a class which the legislature

aimed specifically to protect—if the Superior Court’s opinion is left to stand.

Likewise, the one-sided appeal right read into the statute by the Superior

Court would raise serious constitutional questions under the Equal Protection and

Due Process Clauses of the U.S. Constitution, since “it is now fundamental that,

once established . . .avenues (of appellate review) must be kept free of unreasoned

distinctions that can only impede open and equal access to the courts.” Mayer v.

City of Chicago, 404 U.S. 189, 193 (1971) (internal alterations and quotations

omitted); see also Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002)

(reviewing the constitutional basis for the right of access to courts in, inter alia, the

Fourteenth Amendment’s Equal Protection and Due Process Clauses).

The stark discrimination that results from the misguided interpretation below

cannot stand in the face of these federal and state constitutional rights. See

Harrington, 563 Pa. at 577, 763 A.2d at 393 (“we are obliged to construe

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legislative enactments, where possible, in compliance with the federal and state

constitutions . . . .”) (citing 1 Pa.C.S. § 1922(3)).

E. Section 764h(k)(2) Must Be Construed To Avoid The AbsurdResult That Follows From Appellee’s Interpretation

The Superior Court’s strained reading of Section 764h(k)(2) should be

rejected for the additional reason that it would produce an absurd and unjust result.

Under the laws of Pennsylvania, ambiguous statutes are interpreted with

consideration for “[t]he consequences of a particular interpretation.” 1 Pa.C.S. §

1921(6). Furthermore, there is a presumption that the legislature “d[id] not intend

a result that is absurd, impossible of execution, or unreasonable.” 1 Pa.C.S. §

1922(1); see Bd. of Revisions of Taxes, City of Phila. v. City of Phila., 607 Pa. 104,

125, 4 A.3d 610, 622 (2010) (citing 1 Pa.C.S. § 1922(1)-(2) and stating

“Governing presumptions are that the General Assembly intended the entire statute

at issue to be effective and certain, and that the General Assembly does not intend

an absurd result or one that is impossible of execution”).

Here, the interpretation adopted by the Superior Court would produce the

absurd result of giving access to the courts only to insurance companies and not to

the insureds under a statute that by all accounts was designed to protect insureds

against discrimination and arbitrary denials of coverage for autism services.

In Pennsylvania Labor Relations Board v. State College Area School

District, 461 Pa. 494, 337 A.2d 262 (1975), this Court was faced with a statute that

- 25 -

required collective bargaining in the public sector but also included a provision

that seemed to inconsistently limit that requirement. Confronted with this

inconsistency, this Court determined that:

In this setting, we are forced to conclude that thelegislature at the time of the passage of Act 195 fullyrecognized that the right of collective bargaining wascrucial. . . . It would be absurd to suggest that thelegislature deliberately intended to meet this pressingneed by providing an illusory right of collectivebargaining. 461 Pa. at 503, 337 A.2d at 266 (citationomitted).

Here, likewise, it would be absurd to suggest that the General Assembly that

enacted the Autism Insurance Act in order to require insurance coverage of

treatment for autism spectrum disorders would simultaneously deny the right of

policyholders to appeal denials of that coverage, while granting insurers appeal

rights for any order of complete or partial coverage.

II. This Case Presents A Justiciable Controversy

Appellee previously argued that this Court should avoid review of this case

on grounds of mootness. To the extent it again presses this argument in briefing,

the argument should be rejected because, in addition to the other arguments raised

by Appellant, See App. Br. 9-23, this matter falls squarely within the “issues of

- 26 -

great public importance” exception to the general principles of mootness. See

Rivera v. Pa. Dep’t of Corr., 837 A.2d 525, 528 (Pa. Super. Ct. 2003).21

This Court has consistently held that matters involving due process and

implicating critical public health concerns fall within the exception for high public

importance. See, e.g., Commonwealth. v. Nava, 966 A.2d 630, 633 (Pa. Super. Ct.

2009) (court determined that case involving a right to appeal prior to deportation

was a question of great public importance ); Commonwealth ex rel. Finken v.

Roop, 234 Pa. Super. Ct. 155, 162 n. 4, 339 A.2d 764, 767 n. 4 (1975)

(determination regarding mental health commitment raised “extremely important”

constitutional issues that affect a large number of people); Janet D. v. Carros, 240

Pa. Super. Ct. 291, 309, 362 A.2d 1060, 1069 (1976) (in a case involving child

welfare agency policies, the court stated “although appellee did not bring this

action as the representative of a class. . . the subject of this appeal may fairly be

viewed as a continuing controversy that affects a large number of persons.”).

Here, ensuring access to the courts to interpret and enforce insurance

company decisions regarding necessary healthcare coverage for autistic children is

manifestly a matter of great public importance, as reflected by the 34 states that

21 Although it is unnecessary to reach the issue given the manifest public importance of theissues, the exception for matters capable of repetition yet evading review is also implicated here.Insurance plans and insurers may change on a yearly basis at the discretion of an employer. Theimpending changes to the insurance market posed by the Affordable Care Act add additionalvagaries that would increase the likelihood of the issue evading judicial review.

- 27 -

have passed similar legislation, see supra at n.17, and the scientifically proven

effectiveness of ABA and the corollary consequences of depriving autistic children

of that therapy, see supra at n.12. It is not surprising that the Superior Court’s

decision has drawn the attention of the press and is being closely monitored by

interested parties. Dan Packel, Pa. Justices to Weigh Who Can Appeal Autism Case

Denials, LAW360, (July 11, 2013), available at http://www.law360.com/articles/

456733/pa-justices-to-weigh-who-can-appeal-autism-case-denials.

Within Pennsylvania itself, the issue presented is manifestly of high public

importance, potentially affecting over 20,000 Pennsylvanians with autism and their

families.22 The legislative history is filled with pervasive concerns that this

“landmark” legislation be properly and fully implemented. See, e.g., Pa. H.R.

Jour., 192nd Leg. at 1734-36.

Among those legislative concerns was the potential impact of denials of

coverage by insurance companies on the public fisc—specifically the danger of

continuing to force Medical Assistance to serve as a “safety net” for persons whose

22 A 2009 study commissioned by the Pennsylvania Department of Public Welfareprojected a total of 25,000 individuals in Pennsylvania would be diagnosed with autism as of2010 of whom 23,225 would be under the age of 21, and therefore potentially be subject to Act62 coverage. See R.684a.-702a. It was estimated in 2008 some 10,337 Pennsylvania childrenwith autism would have state-regulated insurance coverage subject to Act 62 at any one point intime. See R. 714a. Obviously the identity of persons covered by private insurance will changeover time depending on their individual circumstances. In addition because the availability ofinsurance coverage impacts the total funds available for autism services, all persons with autismin Pennsylvania have a significant interest in this case.

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treatments should be covered by their health insurance. See Pa. H.R. Jour., 191st

Leg., No. 74, 1936, 1942 (2007). In order to preserve Medical Assistance funds

for other services and for persons without insurance coverage, it was deemed

critical for insurance carriers to comply with the autism insurance mandate and

cover the services specified. Id., Br. of Amici Curiae, Members of the Pa. House

of Reps. at 10.

As the legislature was well aware, if children do not receive adequate

treatment, due to insurance company denials, the harm to them is likely to be

devastating and irreparable,23 with the state bearing continuing costs of care not

only for early intervention but throughout their lifetimes.24 This is an issue of

undeniable public importance. Denial of treatment ultimately increases special

education costs for children who are denied access to care that could ameliorate

their disability.

An additional primary concern underlying the passage of Act 62 was to

ensure that insurance bears its “fair share” of this health crisis. H.R. Jour., 192nd

Leg. at 1736. “The closed door to insurance coverage is straining the medical

assistance network, depriving the most vulnerable among us of the medical safety

23 See, e.g., Parents League for Effective Autism Servs. v. Jones-Kelley, 339 F. App’x 542,547 (6th Cir. 2009) (affirming grant of preliminary injunction requiring provision of ABAservices).

24 See H.R. Jour., 192nd Leg. Sess., No. 52, 1709, 1736 (2008) (Speaker O’Brien) (“Thehuman toll brought by the refusal of insurers to provide coverage is immense”.)

- 29 -

net which medical assistance is intended to provide.” Id.25 To the extent Medical

Assistance is forced to cover treatments that by statute ought to be covered by

insurance, there will less funding available for the myriad of other supports and

services by the Commonwealth’s citizens who utilize Medical Assistance.

The important public policies at stake as reflected in the legislative history

undercore that the legislature did not intend to give insurers carte blanche to ignore

the statute unchecked by judicial review. See Pa. Dep’t of Welfare, Pa. Autism

Needs Assessment, Report #3: Barriers and Limitations to Accessing Services, at 6

(Sept. 2011) (“The recently-passed autism insurance mandate may increase

coverage for autism services, but careful monitoring is needed to determine

whether insurance companies are implementing the mandates as designed.”). This

ongoing need for “careful monitoring” to implement Act 62—a matter of great

public importance—underscores that this case is far from moot.

Conclusion

Individuals with autism are as entitled to access to the courts as are

insurance companies. Speaker O’Brien on the House floor urged that Act 62 was

to “redefine the future through access to medical care…pierce the darkness of the

autism avalanche, and bring about a new day for those with autism.” Autism

25 The legislature also expressed concerns about the limitations of Medical Assistance as anexclusive safety net because of possible future changes at the federal level. H.R. Jour., 192ndLeg. at 1734-35 (remarks of Speaker O’Brien).

- 30 -

Speaks joins with the Appellant and all concerned Pennsylvanians in urging this

Court to carry through on this intent.

For all of the aforesaid reasons, the judgment of the Superior Court should

be reversed and the case remanded to the Superior Court to review the merits of the

trial court’s decision.

Dated: September 25, 2013 Respectfully submitted,

/s/Cheryl A. KrauseCheryl A. Krause (Pa. 90297)Kate W. Ericcson (Pa. 312389)Karen C. Daly (Pa. 207879)Cira Centre, 2929 Arch StreetPhiladelphia, PA 19104-2808(215) 994-4000cheryl.krause@dechert.comkate.ericsson@dechert.comkaren.daly@dechert.com

Attorneys for Amici Curiae Autism Speaks

Daniel Unumb, Esq.Executive DirectorAutism Legal Resource Center863 Corley Mill Rd.Lexington, SC 29072(803) 520-8080Daniel.unumb@autismspeaks.org

Of Counsel

CERTIFICATE OF SERVICE

I hereby certify that on this 25th day of September, 2013, I caused two true

and correct copies of the foregoing Brief of Amicus Curiae Autism Speaks to be

served on the following via U.S. Mail, which satisfies the requirements of Pa. R.

App. P. 121:

David G. GatesPennsylvania Health Law Project

1414N. Cameron St., Suite BHarrisburg, PA 19103

Attorney for Appellant

Gerald J. Dugan, Esq.Dugan, Brinkman, Maginnis and Pace

1880 John F. Kennedy Blvd., Suite 1400Philadelphia, PA 19103

William H. Lamb, Esq.Lamb McErlane, P.C.24 E. Market Street

P.O. Box 565West Chester, PA 19381-0565

Attorneys for Appellee

Gerald Austin McHugh, Jr.Raynes McCarty

1845 Walnut Street, Suite 2000Philadelphia, PA 19103

Attorneys for Amicus O’Brien

Tara L.SmithDemocratic Caucus

Pennsylvania House of RepresentativesRoom 620 Main Capitol Building

Harrisburg, PA 17120

Rodney A. CoreyRepublican Caucus

Pennsylvania House of RepresentativesSuite B-6, Main Capitol Building

Harrisburg, PA 17120

Attorneys for Amici Curiae House of Reps.

/s/Cheryl A. KrauseCheryl A. KrauseDechert LLP