On appeal from a Final Administrative Determination of the State Health Benefits Commission.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 21, 2010
Before Judges Graves and Sabatino.
Appellant J.S., on behalf of her minor daughter, E.D., challenges the decision of the State Health Benefits Commission (Commission) denying coverage for physical and occupational therapies. E.D. is covered under NJ PLUS, a plan established within the New Jersey State Health Benefits Program and administered by Horizon Blue Cross Blue Shield (Horizon). After reviewing the record and applicable law in light of the arguments advanced on appeal, we reverse and remand for further proceedings.
E.D. was born on December 9, 1994, with agenesis of the corpus callosum (ACC).*fn2 In August 2003, appellant requested prior authorization of benefits for physical and occupational therapy services for her daughter. On August 22, 2003, Horizon denied appellant's request, claiming that the services were contractually excluded from appellant's benefit plan because their purpose was to achieve development beyond any level of functioning that E.D. had previously demonstrated. Horizon cited a provision of the NJ PLUS Member Handbook that excludes educational or developmental services or supplies, including "services or supplies that are rendered with the primary purpose being to provide the person with a service or supply that is being provided to promote development beyond any level of function not previously demonstrated."
Following "a first level internal appeal," Horizon confirmed the denial of coverage and appellant appealed to the Commission. After the Commission voted to uphold Horizon's decision, appellant appealed the Commission's determination and requested a hearing in the Office of Administrative Law (OAL). The administrative hearing took place before an Administrative Law Judge (ALJ) on August 14, 2007, and February 20, 2008. Three witnesses testified during the first hearing on August 14, 2007: appellant; Dr. Barbara Leech, a psychologist who testified as appellant's expert; and Dr. Sau Yee, M.D., who testified as an expert for Horizon. Wendy Rutan, a service operations manager for Horizon, testified at the second hearing.
At the administrative hearing, appellant argued that ACC was a biologically-based mental illness (BBMI), as defined by N.J.S.A. 52:14-17.29d,*fn3 and E.D. was entitled to physical and occupational therapy services pursuant to the Mental Health Parity Act (MHPA). The MHPA requires the Commission to "provide coverage for biologically-based mental illness under the same terms and conditions as provided for any other sickness." N.J.S.A. 52:14-17.29e. Appellant also claimed the Commission erred by denying coverage based on the developmental exclusion clause because E.D.'s physical and occupational therapy was not intended to achieve development beyond a level of functioning that E.D. had previously demonstrated.
Appellant testified that E.D. is often defiant, hostile, and oppositional toward both parents, and suffers from over-stimulation, anxiety, anger, and frustration. In addition, E.D. struggles to build close relationships with others, has no close friends, and often alienates her peers. According to appellant, E.D. seeks sensory gratification by chewing gum and "constantly hugging" her mother. Appellant also testified E.D. has low muscle tone in the trunk area and spine curvature, which causes her stomach to "pop out" and her back to "sway in." Moreover, appellant testified E.D. has problems with balance and strength, and she complains of fatigue and back pains when engaging in simple physical activity, such as a short walk or "sitting for long periods of time."
As a "sensory seeker," E.D. "will eat constantly" unless appellant intervenes. Consequently, E.D. is "very overweight." Appellant testified E.D. was twelve years old at the time of the hearing, five feet three inches tall, and weighed at least 190 pounds. Appellant also confirmed that the physical and occupational therapy services E.D. had received helped her with her balance, coordination, and endurance.
Appellant's expert, Dr. Leech, conducted a neuropsychological evaluation of E.D.*fn4 in April and May 2006, and her written report was entered into evidence. According to Dr. Leech, E.D. has a "known history" of ACC, which she characterized as "a biological disorder of the brain." When Dr. Leech was asked why she believed ACC was a biological disorder of the brain, she testified: "Because it is a congenital abnormality of the brain that causes [E.D.'s] problems."
Dr. Leech testified that E.D.'s symptoms are typically treated with physical and occupational therapy. She explained that ACC is treated by "focus[ing] on giving the person compensatory strategies" and that "[w]ith ACC we're not looking to fix the problem, we're looking to help the person cope better."
Dr. Sau Yee, who is board certified in pediatrics and internal medicine, testified on behalf of Horizon. Dr. Yee admitted he "never had any hands-on experience" with ACC, but testified he was "familiar with it as a result of [his] training." According to Dr. Yee, ACC is an "anatomical defect in development" rather than a mental illness or a "mental or nervous condition."
Wendy Rutan, a Horizon service operations manager who handles complaints and appeals, testified that Horizon considered the physical and occupational therapy services requested by appellant "to be developmental in nature and therefore not eligible under the contract." Rutan acknowledged, however, that Horizon paid for E.D.'s occupational therapy services from February 14, 2001, through June 20, 2001, and from June 15, 2005, through August 17, 2005; and for physical therapy from July 28, 2003, through August 20, 2003, and from August 21, 2006, through ...