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Markiewicz v. State Health Benefits Commission

January 17, 2007; as amended January 22, 2007

WALTER MARKIEWICZ, PETITIONER-APPELLANT,
v.
STATE HEALTH BENEFITS COMMISSION, RESPONDENT-RESPONDENT.



On appeal from a Final Agency Decision of the State Health Benefits Commission, TYP 6355-04S.

The opinion of the court was delivered by: Payne, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted October 24, 2006

Before Judges Kestin, Weissbard and Payne.

N.J.S.A. 52:14-17.29e, applicable to health insurance coverage offered by the respondent State Health Benefits Commission (SHBC), requires parity in coverage for treatments for biologically-based mental illness and for other sickness. It provides in relevant part:

The State Health Benefits Commission shall ensure that every contract purchased by the commission on or after the effective date of this act that provides hospital or medical expense benefits shall provide coverage for biologically-based mental illness under the same terms and conditions as provided for any other sickness under the contract.

N.J.S.A. 52:14-17.29d defines "biologically-based mental illness" to be a "mental or nervous condition that is caused by a biological disorder of the brain and results in a clinically significant or [sic] psychological syndrome or pattern that substantially limits the functioning of the person with the illness, including, but not limited to . . . pervasive developmental disorder or autism."

Petitioner Walter Markiewicz, a public employee, is insured by the SHBC under its NJ Plus*fn1 plan. His son, T., is a covered person under that insurance plan. T. suffers from "pervasive developmental disorder, not otherwise specified," (PDD-NOS or PDD), a severe condition, related to autism, that has caused gross delays in his development of motor skills and other neurological and muscular problems. The recognized treatments for his condition consist of occupational, speech and physical therapy.

The SHBC concedes that PDD is a biologically-based mental illness, that T. suffers from it, and that the therapeutic services provided to him are medically necessary. Nonetheless, after paying claims for such treatment for 22 months, commencing in June 2003 it has denied coverage for the treatment as the result of an exclusion in its health benefits contract as set forth in the NJ Plus Member Handbook for:

Educational or developmental services or supplies. This includes services or supplies that are rendered with the primary purpose being to provide the person with any of the following:

- a service or supply that is being provided to promote development beyond any level of function previously demonstrated.

In this appeal from a final determination of the SHBC enforcing the contractual exclusion in the circumstances presented, petitioner challenges the enforceability of the exclusion, arguing that it is contrary to the Legislature's intent when including PDD within the scope of its mental health parity legislation, that the exclusion is ambiguous, and that the recognition of the exclusion in this case results in a denial of equal protection. Because we find that the contractual exclusion as applied to covered persons with PDD is contrary to the Legislature's intent in enacting the parity statute applicable to the State Health Benefits Plan, we reverse.

I.

T. was born on February 4, 1997 with PDD, a neurologically-based developmental condition of unknown origin that is presently incurable, although its symptoms are, to an extent, treatable. T's condition is manifested in significantly low muscle tone and weakness, with hypermobile joints that render T. unable to do activities such as holding a pen or throwing a ball, because he cannot maintain a grasp. Unaware of where his tongue is in his mouth, T. has problems swallowing, and he has been known to choke as a result. He has visual and auditory processing problems. T. has severe problems with his balance, has little knowledge of where his body is in space, and must plan motions ...


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