Judge giveth and judge taketh away in military insurance case on autism

McClatchy Washington BureauJune 6, 2013 

— A federal judge has now frustrated military families that earlier won insurance coverage for a certain kind of autism therapy.

In a rare reversal, U.S. District Judge Reggie Walton second-guessed his own previous order that the military’s health program pay for the autism therapy sought by a Florida couple and others. For retired Air Force Master Sgt. Kenneth Berge and his wife, Dawn, of Crestview in the Florida panhandle, the new decision could complicate long-term efforts to help their son, Zachary.

Walton’s legal about-face also could affect, at least temporarily, many others who want the TRICARE military health program to pay for the therapy, called “applied behavior analysis.” Ruling in a class-action lawsuit in July 2012, Walton ordered Pentagon officials to cover the therapy under the health program’s basic plan.

This week, Walton concluded he erred and would now give federal officials a second chance to justify their policy or change it.

“Judges must have the integrity to acknowledge and accept their mistakes if justice, rather than pride, is the controlling factor in our sometimes failed efforts to adhere to the rule of law,” Walton wrote for the U.S. District Court for the District of Columbia.

Walton’s reversal will not immediately cut off benefits. Defense Department officials have promised to continue covering the therapy under the TRICARE basic program, as he originally ordered, until the issue has been re-examined and all legal appeals have ended.

In his 21-page decision issued late Wednesday stopping his prior order. Walton sided with Justice Department officials who had sought reconsideration of the earlier order. He sent the “applied behavior analysis” issue back for further evaluation and also took away the class-action certification he had granted earlier.

“We are committed to these families and will continue fighting for their right to receive this needed therapy for children with autism,” attorney Gerard Mantese, who represents the Berge family and others, said by email Thursday.

Attorney Brian M. Saxe said in a telephone interview Thursday that the judge is saying “there’s enough wrong with the program that they’ve got a lot of explaining to do,” and he voiced optimism that eventually the original order from July 2012 will be upheld.

“It’s unfortunate that it’s going to take longer,” Saxe said.

An estimated 22,000 military dependents have been diagnosed with autism, a term that covers a wide spectrum of behavioral and communication conditions. Advanced behavior analysis uses rewards to help reinforce appropriate behavior, among other techniques. It has been praised for its effectiveness, but it is also time-consuming and expensive.

A San Diego-based Marine Corps sergeant, Scott Facteau, and his wife, Cynthia, for instance, joined the Berge lawsuit in 2010 in hopes of getting help for their autistic son, identified in court papers as H.F. In an August 2010 affidavit, Cynthia Facteau said her son was only receiving half of the 30 hours per week of therapy that the pediatrician considered necessary.

“Limitation of H.F.’s therapy subjects Scott and I to the excruciating pain of knowing H.F. could be making enormous advancements in his development with additional therapy, but being left without any ability to provide the additional hours,” Cynthia Facteau declared.

North Carolina-based special forces officer Brian Love and his wife, Naomi, also joined the original suit, explaining in an August 2010 affidavit that “we refinanced our home so that we could afford to pay out of our pocket” for their son’s extensive therapy.

Defense Department officials have previously concluded that “there is insufficient reliable evidence to find that (the therapy) is proven as medically or psychologically necessary and appropriate medical care.” Nonetheless, coverage is allowed under the supplemental plan as a form of special education.

The supplemental plan does not cover retired military family members. For active-duty military that can use the supplemental plan, coverage is limited to $36,000 a year, which families with autistic children say is inadequate.

In July 2012, Walton said the TRICARE policy was “arbitrary and capricious.” In his ruling this week, the judge said that upon “renewed reflection,” he decided the better course would be to remand the case to the agency that administers TRICARE.

Under Walton’s new ruling, officials will get a second opportunity to explain their reasoning for why applied behavior analysis should not be fully covered under TRICARE.

Following this additional study, the Defense Department agency that oversees TRICARE could offer a more thorough rationale for its coverage decisions. Officials also might change their tune and agree that full coverage is warranted.

“The agency’s reconsideration will take into account new literature published since the agency last considered the matter,” Walton noted.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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