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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