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In re Micheletti

January 17, 2007; as amended January 26, 2007

IN THE MATTER OF JACOB MICHELETTI (A MINOR) DEPENDENT OF THE ADULT INSURED,
JOSEPH MICHELETTI, PETITIONER-APPELLANT,
v.
STATE HEALTH BENEFITS COMMISSION, RESPONDENT-RESPONDENT.



On appeal from a Final Agency Decision of the State Health Benefits Commission.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted September 13, 2006

Before Judges Stern, Collester and Sabatino.

The appeal by Joseph Micheletti (petitioner) on behalf of his son Jacob ("Jake") raises the issue as to whether coverage for medically necessary treatment may be declined to an autistic child as a dependent under the State Health Benefits Program (Program).

The Program was created by the State Health Benefits Program Act of 1961, N.J.S.A. 52:14-17.25 to .45 (Act), which also spawned the State Health Benefits Commission (SHBC). The SHBC was entrusted to establish the Program by negotiating and purchasing medical, surgical, hospital, and major medical benefits for participating public employees and their families, "in the best interests of the State and its employees" as well as exclusive jurisdiction to determine disputed matters under the plan. N.J.S.A. 52:14-17.27 to .28.

In addition to basic benefits and stated major medical expense benefits, the Act granted the SHBC sole authority to determine what other "eligible medical services" should be included within the Program as well as "those which shall be excluded from or limited under such coverage." N.J.S.A. 52:14-17.29(A)(2). This discretion to limit or exclude coverage is to be exercised by the SHBC as it deems "necessary or desirable to avoid inequity, unnecessary utilization . . . or benefits otherwise available" under Medicare or other federal statutes, and [n]o benefits shall be provided beyond those stipulated in the contracts held by the [SHBC]." N.J.S.A. 52:14-17.29(B).

The Act further gave the SHBC the authority to establish rules and regulations, and dependents enrolled in the program are "subject to such regulations and conditions as the [SHBC] and the carrier may prescribe." N.J.S.A. 52:14-17.30(B). The SHBC used its rule making power to issue a regulation which provided dependents or those enrolled in the Program with benefits subject only to the terms specified in the relevant insurance contracts.

The [SHBC] adopts by reference all the policy provisions contained in the contracts between the health and dental plans and the [SHBC] as well as any subsequent amendments thereto, to the exclusion of all other possible coverages. [N.J.A.C. 17:9-2.14.]

Jake was three years old when he was diagnosed with autism by a neurologist and a neurodevelopmental pediatrician. As defined by the National Institute of Child Health and Human Development (NICHD), a division of the United States Department of Health and Human Services, autism is a neurobiological development disorder that usually begins at age three and lasts a lifetime. There is no known cause and no cure. The main symptoms involve communication, both verbal and non-verbal, difficulties with social interaction, and repetitive and obsessive behaviors toward objects and routines. http://www. nichd.nih.gov/publications/pubs/upload/autism_overview_2005.pdf.

See also Autism Fact Sheet, National Institute of Neurological Disorders and Stroke, http://www.ninds.nih.gov/disorders/ autism/detail_autism.htm.

The severity of autism varies widely. Some autistic children have led functioning lives; some have obtained a college degree. But others never escaped total isolation of mind, body, and spirit. There is no definitive, separate treatment. Clinical study has demonstrated that speech therapy, physical therapy, and occupational therapy begun at an early age give the autistic child the best chance of a functioning life by minimization of symptoms, acquisition of basic skills, and development to full potential. All authorities agree that treatment should commence as early as possible. NICHD Report on Autism, supra, p. 6-7.

The sooner a child begins to get help, the more opportunity for learning . . . Early intervention programs typically include behavioral methods, early development education, communication skills, occupational and physical therapy, and structured social play. [Id. at 7.]

Following his diagnosis, Jake was evaluated at the Hunterdon Medical Center. Speech therapy and occupational therapy were prescribed as "imperative and medically necessary to his treatment plan."

Joseph Micheletti is employed by the State of New Jersey as a Deputy Attorney General and is a member the State Health Benefits Program, having selected family coverage under New Jersey Plus (NJPLUS), a point-of-service plan offered to eligible employees and retirees. He filed a NJPLUS claim seeking pre-authorization for the prescribed speech therapy and occupational therapy from Horizon Blue Cross Blue Shield (Horizon), the administrator of the Program charged with responsibility for evaluation and processing of claims. Horizon granted authorization for speech therapy, but declined occupational therapy on grounds that the NJPLUS policy set out in the NJPLUS Members Handbook excluded coverage. The Handbook provision stated:

The plan does not cover services or supplies that are rendered with the primary purpose being to provide the person with any of the following:

* Training in the activities of daily living. This does not include services directly related to treatment of an illness or injury that resulted in a loss of a previously ...


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