For tens of thousands of military families impacted by autism, Thursday, July 26, was a day when everything changed. That was the day Judge Reggie B. Walton, a United States District Judge in the U.S. District Court for the District of Columbia, ruled in favor of the plaintiffs, Kenneth and Dawn Berge, and the class of similarly affected families in Civil Action No. 10-0373 (Berge v. United States of America). This case was about whether or not TRICARE, the military's health insurance program, must cover Applied Behavioral Analysis (ABA) as a medically necessary therapy for military dependents with autism under the basic TRICARE coverage. Judge Walton's decision was an emphatic yes!
TRICARE currently segregates ABA, the standard of care in the treatment of autism, into an entirely separate arm of TRICARE, as a "non-medical educational" service. This allows TRICARE to limit care to dependents of active duty service members and places a financial cap on treatment services which falls far below recommended standards. This means that dependents of military retirees, including those involuntarily retired (such as our wounded warriors), are not able to access ABA treatments under TRICARE.
The Berge family is a retired military family who utilizes TRICARE as their health insurance, consistent with the promise generations of military families have depended on when deciding whether or not to make the military a career. After they retired, they attempted to access ABA under TRICARE's basic benefit. Because they were retired, they were told that TRICARE would not cover this treatment for their child with autism. After utilizing the appeals process within the Department of Defense system, they filed a claim in federal court, represented by the firm of Mantese, Honigman, Rossman, and Williamson, P.C. Over the course of the next two years, both sides filed and counter filed motions, but there was very little movement on the underlying issues.
Advocates have been working this issue legislatively for a number of years, culminating in passage by the House of an amendment to this year's defense bill and a Senate Armed Services Committee hearing a little over a month ago, both aimed at fixing this issue. With the Berge case being constantly delayed the last two years, no one expected the judge to rule at all, much less as forcefully as he did last Thursday. In his ruling, Judge Walton stated:
Because the Agency's denial of ABA therapy coverage under the Basic Program is arbitrary and capricious, the Agency must therefore be enjoined from denying qualified beneficiaries coverage on the ground that ABA therapy is not a covered benefit under the TRICARE Basic Program. Thus, the Court will remand this case back to the Agency with instructions that ABA therapy coverage be provided to Basic Program beneficiaries who otherwise qualify for reimbursement and such reimbursement be provided in compliance with the applicable TRICARE guidelines for the expenses incurred by qualified beneficiaries to acquire ABA therapy for their children.
I would encourage everyone to read the entire 66-page decision. To call this a lightning bolt out of the blue would not be an overstatement.
So, what does this mean? First, it depends on whether or not the DoD decides to appeal the case. Given the changing understanding of autism and the knowledge of the importance of intense early intervention, we hope not. Every appeal is simply another delay in providing needed medical therapy to these children. ABA coverage is mandated as medically necessary in 32 states. OPM's recent decision to classify ABA as a medical therapy means many federal civilian employees will be offered coverage next year. More and more state Medicaid plans are covering ABA. Is our nation going to provide fewer health benefits to the families of our warriors compared to the benefits routinely provided to federal civilian employees, the private sector, and many Medicaid beneficiaries? And why would DoD waste further taxpayer dollars on an appeal they are likely to lose, given the strength of Judge Walton's decision? We are hopeful the DoD will see the proverbial writing on the wall and will simply move to implementation of Judge Walton's order. It's the right thing to do for our military families.
Implementation will most likely take a period of time. In the meantime, we will continue to advocate, fighting to ensure military children are provided the therapy they need. Until we know for certain, we will continue to advocate for a legislative fix to this problem and we will continue to need your help to push the Senate to come together with the House as they consider this year's defense bill. Whatever happens next, Thursday was a testament to the fact that one family can indeed make a difference.
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ABA therapy is the singularly most potent autism treatment. Without ABA therapy beginning at an early age, and delivered in a consistent and sustained fashion for at least 2 to 4 years, virtually all children with autism will suffer irreparable harm. Successful intervention for children with autism depends on quick intervention and intensity of service hours. Every minute that an autistic child goes without ABA therapy, the child is irreparably harmed.
Please tell the Department of Defense/TRICARE that it should do the right thing and not appeal the court's decision. The stakes are the opportunities of the children with autism in our nation's military families to live a full and meaningful life, and the lifting of the burden of the excruciating choices that military parents face between assuming the crushing burden of paying out-of-pocket for their child's health care, which almost always dramatically reduces their family's quality-of-life and risks bankruptcy versus condemning their child to a radically diminished future.
If you have any questions, feel free to contact me.
Best wishes.
Dave Honigman
Lead counsel for the class of military families with children with autism
dhonigman@manteselaw.com
248-457-9200, extension 205
I think one of the most important things that can be found in Judge Walton's ruling that affects all families, not just military, is his affirmation of the evidence-based science behind Applied Behavior Analysis (ABA) therapy. Many insurance companies, and Tricare is no different, have hung their hat on the argument that ABA isn't scientifically proven or is experimental (despite the over 5000 peer-reviewed journal articles stating otherwise) and therefore cannot be covered. In several federal court cases this year, judges have overwhelmingly ruled that ABA therapy has the science to back it up as an effective treatment.
This also makes an even greater case for a Federal Law mandating insurance companies cover autism therapies like ABA. Coincidentally, as a Senator, President Obama introduced federal legislation to do just this. Now, with 32 states mandating insurance, it's time to have a Federal law to set minimum requirements. Insurance companies will continue to fight families in court until we have a federal law telling them otherwise. I mean, heck, the Department of Defense is out fighting military families over this, why wouldn't other insurance companies do the same thing? There certainly is no leadership by example out there by the Government to make insurance companies do the right thing on their own.