Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
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Law Review 1284

August 2012

Federal Court Finds DOD to Be “Arbitrary and Capricious” for

Denying TRICARE Coverage for Autism Therapy

By Captain Samuel F. Wright, JAGC, USN (Ret.)

5.0—Military Service and Family Responsibilities

Berge v. United States, 2012 U.S. Dist. LEXIS 104401 (D.D.C. July 26, 2012).

On July 26, 2012, Judge Reggie Walton of the United States District Court for the District of Columbia overturned as “arbitrary and capricious” the Department of Defense (DOD) decision to deny coverage for Applied Behavioral Analysis (ABA) therapy for autistic children (dependents) under TRICARE Basic while approving reimbursement for this very expensive therapy under the Extended Care Health Option (ECHO).  The difference is that ECHO is limited to dependents of active duty military personnel, while TRICARE Basic applies also to dependents of military retirees.  Judge Walton did not mention military reservists (not on active duty) in his decision, but this issue also affects reservists participating in TRICARE Reserve Select and TRICARE Retired Reserve.

Kenneth Berge is an Air Force retiree.  He and his wife Dawn Berge have a young son (referred to in the decision as “Z.B.”) who has autism.  If Kenneth were still on active duty, he would be eligible for up to $30,000 per year for ABA therapy for Z.B., through ECHO.  Since Kenneth is now retired, he is not eligible for ECHO, and DOD denied coverage for ABA therapy under TRICARE Basic.

The Berges sued DOD in the United States District Court for the District of Columbia.  They requested and Judge Walton granted class certification.  This means that the Berges represent all similarly situated TRICARE Basic beneficiaries who have been denied coverage for ABA therapy. 

After extensive discovery, this case was presented to Judge Walton on cross motions for summary judgment.  DOD argued that ABA is an educational program and not a form of medical therapy.  Judge Walton firmly rejected that argument.  He also rejected the DOD argument that that the safety and efficacy of ABA therapy is “unproven.”  DOD cannot justify paying for ABA for active duty families under ECHO while denying payment for others under TRICARE Basic, since the same legal standards apply to both programs.

Judge Walton summarized his decision and order as follows:  “Because the [TRICARE Management] 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.  Accordingly, for the foregoing reasons, the plaintiffs’ motion for summary judgment is granted and the defendants’ cross-motion for summary judgment is denied.”

If it chooses to do so, DOD can appeal Judge Walton’s decision to the United States Court of Appeals for the District of Columbia Circuit.  DOD has not yet filed such an appeal, but the deadline for doing so has not yet passed.  We will keep the readers apprised of developments in this important case.