Samuel F. Wright

Captain, JAGC, USN (Ret.)
Director, Service Members Law Center
(800) 809-9448, ext. 730
Email: swright@roa.org
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Law Review 1284_Update

September 2012

TRICARE Management Agency Implements Court Decision

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

In Law Review 1284 (August 2012), I reported on the decision of Judge Reggie Walton, of the United States District Court for the District of Columbia, holding that the decision of the Department of Defense (DOD) to deny TRICARE coverage for Applied Behavioral Analysis (ABA) therapy for autistic children was arbitrary and capricious and contrary to law.  Judge Walton enjoined DOD from denying qualified TRICARE beneficiaries coverage for ABA therapy, and he did not stay his injunction pending appeal.  See Berge v. United States, 2012 U.S. Dist. LEXIS 104401 (D.D.C. July 26, 2012).

The TRICARE Management Activity (TMA) is implementing Judge Walton’s order.  In a recent blast e-mail, Mr. Kevin Dwyer of TMA stated:  Following a recent court order, TRICARE Management Activity will cover applied behavioral analysis therapy under the TRICARE medical benefit for all eligible beneficiaries in accordance with applicable requirements that ensure the need and quality of the care. This benefit will remain in effect until litigation is complete. For more information about changes to TRICARE’s autism coverage, go to www.tricare.mil/abatherapy.”

Judge Walton released his decision on July 26, 2012.   Under the Federal Rules of Appellate Procedure, the losing side has 60 days to appeal a District Court decision to the Court of Appeals.  If DOD is to appeal from Judge Walton’s decision, it must do so by September 24, 2012.  No such appeal has yet been filed.  We will keep the readers informed of developments in this important case.

One sharp-eyed reader noted that I referred to “TRICARE Basic” in Law Review 1284, and there is no program with that name.  I used that terminology because that is the language that Judge Walton used in his published decision.  But Judge Walton’s decision applies to TRICARE Standard, TRICARE Prime, TRICARE Reserve Select, TRICARE Retired Reserve, and perhaps even TRICARE for Life.