Federal Judge Reverses Course on TRICARE ABA Ruling

WASHINGTON, DC (June 7, 2013) -- Autism Speaks expressed disappointment with a federal judge's unusual decision to partially reverse his 2012 ruling directing TRICARE, the Department of Defense (DoD) healthcare program, to cover ABA for all military families.

U.S. District Court Judge Reggie Walton said he overreached last year by ordering TRICARE to change the policy, and that he should have just remanded the case back to the agency to reconsider its policy. Walton's ruling came on a motion by the DoD to reconsider his July 2012 decision in Kenneth Berge v United States of America, a class action suit brought on behalf of military families.

"Military families need to be assured that this litigation is continuing and that we are committed to reaching our ultimate goal of universal coverage for all military families at medically prescribed levels," said Karen Driscoll, Autism Speaks' associate director of federal government affairs and military relations and a Marine Corps spouse. "This may delay, but will not deny us from reaching that goal.” 

In the meantime, Driscoll said Autism Speaks is working with its champions in Congress to permanently change TRICARE's policy by statute. Congress last year ordered TRICARE to set up a one-year ABA pilot program by April 2, but the agency has yet to announce when the program will start or how it will operate, leaving families without appropriate care.

Dave Honigman, who brought the case with Gerard Mantese, said the plaintiffs will review Walton's decision further and decide on their next steps. While the litigation continues, TRICARE's "interim" policy to reimburse ABA care provided by BCBAs through its Basic program remains in effect.

In his July 2012 ruling, Walton called TRICARE's policy of covering ABA for active duty employees while denying it to retirees "arbitrary and capricious and not in accordance with the law." He ordered the DoD to change the policy.

"After renewed reflection," Walton said in his new ruling, "the Court agrees that it committed 'clear error' in its ruling that remand to the Agency was an 'unnecessary formality,' and that the Court should have remanded the case to the Agency for further action."

Walton rejected the plaintiffs' argument that TRICARE was merely seeking "repeated, entirely duplicative remand opportunities in order to keep coming up with new reasons for denying coverage." Instead, he cited the courts' policy of permitting reconsideration "to allow agencies to cure their own mistakes.”

Read the McClatchy Newspapers coverage here