• December 18, 2014

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

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Posted: Friday, June 7, 2013 4:30 am | Updated: 1:16 pm, Mon Aug 19, 2013.

WASHINGTON — A federal judge has now frustrated military families who 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, 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 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.

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.

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.

Defense Department officials 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 who can use the supplemental plan, coverage is limited to $36,000 a year, which families with autistic children said is inadequate.

© 2014 McClatchy Washington Bureau. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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