TRICARE Victory for ABA Services

By Butterfly Effects Editorial Staff   |   07/27/2012   |   comments
TRICARE Victory for ABA ServicesNew Ruling Could Impact 20,000 Children
ABA is not Unproven and  Cannot be Denied to any Dependents Regardless of Military Status

WASHINGTON, July 26, 2012
Washington D.C. Federal District Judge Reggie Walton today ruled that the Department of Defense and its military insurance arm, Tri-Care acted arbitrarily and capriciously in denying applied behavior analysis therapy to military dependents with autism spectrum disorder. The ruling was issued in the case of Berge v United States, No. 10-0373. This ruling capped the military families' three year battle with the Department of Defense and TriCare. The Court granted Summary Judgment to the families, ordering that the government cover ABA therapy for thousands of autistic children of military dependents. The government had taken the position that the therapy was "unproven." Judge Reggie Walton held that this conclusion was arbitrary and capricious and ordered the government to provide the therapy immediately. The 67 page ruling is expected to benefit 20,000 children with autism spectrum disorder.
-- A release from the law firm of Mantese Honigman Rossman and Williamson:

As it is written, the ruling expands coverage to all families receiving TRICARE benefits

Prior to this ruling, ABA-based services for children with autism was restricted as a benefit to active duty family members under the TRICARE ECHO program. The same services have been routinely denied to those nonactive or retired military personnel receiving what is referred to as Basic Services.  The judge in this case however concluded that this was an arbitrary distinction: 

 "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."

The judgement in the case was as strong as possible, considering it could have been returned for review and correction, rather than provide such a conclusive finding. The judge found that the Department of Defense already had the opportunity to make corrections but had failed to do so.

However, the ruling and its instructions can still be appealed. As of now TRICARE has not provided any instruction to providers, which will be needed before veterans and others with a nonactive status will be able to apply for services without receiving a rejection.

This ruling may help to counter recent legislative setbacks to get the ABA benefit expanded to all those enrolled in TRICARE, irrelevant of duty status. This past spring a U.S. House bill to do so was tabled. Then an effort to get the change included in a Department of Defense appropriations bill went through the House but failed to be approved by the Senate. It is hoped that this judicial decision will help inspire more action in the Senate.

In the past, families often lost their ABA benefit when their duty status changed, regardless of how that change occurred, even due to death or injury.

Families eager to start services for their children will need to remain patient for a while longer as things play out. At Butterfly Effects, we will keep track and provide continual updates as the ruling is appealed and / or policy is set.

Sign the petition to get Congress to move forward at
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