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22,000 Military Families Secure Judgment Against Department of Defense and Military Insurer For Over $280 Million in Autism Therapy

For over a decade, the Department of Defense (“DoD”) and its health insurance arm, Tricare, have denied coverage for Applied Behavior Analysis (“ABA”) therapy to children from military families having autism spectrum disorder. The DoD and Tricare improperly labeled ABA therapy as special education (to be provided by schools) as opposed to a health benefit that they were obligated to provide. In 2010, Kenneth and Dawn Berge’s counsel filed a class action in federal district court in Washington, D.C., on behalf of their minor child and more than 22,000 military dependents with autism.
In the suit, brought under the Administrative Procedure Act, Plaintiffs alleged that the DoD’s policy was contrary to law, and arbitrary and capricious; and that ABA therapy constitutes medically necessary health care under the military health benefits statute. After extensive briefing and hearings in which Plaintiffs established that ABA therapy is health care and not special education, the DoD and Tricare conceded that ABA therapy was not special education after all and changed their explanation, claiming that (1) the effectiveness of ABA therapy is “unproven,” and (2) ABA therapy is essentially “training” rather than "medical care." After further extensive briefing and hearings, including the filing of cross-motions for summary judgment, the District Court granted summary judgment in favor of Plaintiffs, holding that the DoD's and Tricare’s denial of coverage for ABA therapy was arbitrary, capricious, and illegal.
The District Court also certified a nationwide class of beneficiaries with autism from military families, issued a permanent injunction enjoining DoD and Tricare from denying coverage for ABA therapy, and ordered DoD and Tricare to provide coverage for ABA therapy to the class of military beneficiaries. The decision is the first ever to grant a litigated class action judgment on the merits to children with autism seeking coverage for ABA therapy and the first to grant such relief in the face of the Chevron doctrine, which requires that courts must ordinarily defer to the decisions of a federal agency. The ruling is expected to provide more than $280 Million in benefits in just the first two years, and establishes a signal precedent in litigation seeking health care benefits for children with autism throughout the country.
ABA therapy is a well established behavioral therapy that enables children with autism spectrum disorder to increase communication skills, enhance social functioning and autonomy, decrease negative behaviors, and reach their potential. ABA therapy is supported by the National Institutes of Health, the American Academy of Pediatrics, the U.S. Surgeon General, a Joint Report of the Medicare and Medicaid system, and leading scholars and researchers.

Type of Action: Statutory claim for health benefits under federal law
Injuries Alleged: Denied health benefits
Name of Case: Berge, et al. v. United States of America, et al.
Court; Case No.: United States District Court for the District of Columbia; 1:10-cv-00373
Tried Before: Summary Judgment
Name of Judge: Reggie B. Walton
Amount: In excess of $280 Million
Date of Decision: July 26, 2012
Most Helpful Expert: Dr. Gina Green, Ph.D, BCBA D
Attorneys for Plaintiffs: Dave Honigman, Gerard V. Mantese, Brian Saxe, John Conway
Attorneys for Defendants: United States Department of Justice