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Case 1:10-cv-00373-RBW Document 127 Filed 10/01/12 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ KENNETH BERGE, ET. AL, ) ) Plaintiffs, ) ) vs. ) ) UNITED STATES OF AMERICA, ET. AL , ) ) Defendant. ) __________________________________________)

Civil Action No. 10-373 (RBW)

REPLY IN SUPPORT OF PLAINTIFFS’ MOTION TO CLARIFY CLASS CERTIFICATION AND RELIEF I.

INTRODUCTION Defendants’ Opposition to Plaintiffs’ Motion to Clarify Class Certification and Relief

[DE 123] and the Declaration of Michael O’Bar make it clear that clarification of the Court’s judgment is needed. Whether because of misunderstandings of basic tenets of law, such as the well-established rule that the filing of a Complaint tolls class claims, or because DoD remains committed to do whatever it takes to avoid paying for expensive ABA therapy, the defendants are denying class members the relief this Court has ordered. The defendants are purposely sabotaging the Court’s Order in multiple ways by (1) refusing to provide the mandated relief to obvious class members, and (2) refusing to reimburse the providers who deliver the vast majority of hands-on ABA therapy. For instance, in the Memorandum Opinion granting Plaintiffs’ Motion for Summary Judgment, this Court held as follows: On March 5, 2010, the plaintiffs filed this action in this Court under the APA, challenging the June 18, 2007 decision by the TMA denying coverage for ZB's ABA therapy… The Court allowed the Agency additional time to review the plaintiff's' request for benefits… Ultimately,’ on October 29, 2010, the Chief of


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TRICARE Appeals issued a formal review decision denying reimbursement to [the] plaintiffs for ABA therapy under the TRICARE Basic Program for their dependent’s [autism].’" (DE 119, Memorandum Opinion, pp. 9-10)(emphasis added). This Court has, therefore, stated that coverage for ABA therapy at least as far back as June 18, 2007 was asserted by Plaintiffs. Further, the Court held that the June 18, 2007 claim (for ABA therapy provided on May 21, 2007) was considered by Defendants and denied, and considered a second time on remand and denied again. Finally, the defendants’ second denial of Plaintiffs’ June 18, 2007 claim for services was adjudicated and rejected by this Court, because this Court found the June 18, 2007 denial was arbitrary, capricious and contrary to law. Following the Court’s Order granting Plaintiffs’ Motion for Summary Judgment, TRICARE published new guidelines for reimbursement of ABA therapy under the Basic Program. Notices relating to the new guidelines provide that “This benefit is retroactive to March 5, 2010.” (Ex 1, HealthNet Notice of Changes in ABA Coverage). Thus, Defendants acknowledge that the relief Ordered by this Court is necessarily retroactive, but they have chosen a completely arbitrary “effective date” that has no connection to the date of the Complaint or the date of the class representative’s claim for services at issue in the Complaint.” See Wright v. Califano, 603 F.2d 666, 671 (7th Cir. 1979)(“Reversal of the Secretary’s decision as to eligibility necessarily requires the award of ‘retroactive’ relief. It is the date on which the application is filed, and not the date on which the claimant is ultimately determined to be eligible, that triggers his entitlement to benefits under the Act.”) Indeed, the Court has certainly determined that the ABA therapy the Berges sought reimbursement for in 2007 was not unproven and was medically necessary care that TRICARE must cover. At a minimum, the Court’s Order applies to ABA therapy rendered on or after May

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21, 2007, the date of Z.B.’s first services. Nonetheless, TRICARE’s new policy guidelines have resulted in a denial of all claims for Z.B.’s ABA therapy services rendered during 2009. (Ex 2, TRICARE denial of Z.B. benefits 9/11/2012). Reasons given for the denial include “THE PROVIDER WHO PERFORMED THE SERVICE WAS NOT TRICARE-CERTIFIED AT THE TIME OF SERVICE” and “SERVICE(S) FILED AFTER TIME LIMIT.

ALL

CLAIMS MUST BE RECEIVED WITHIN ONE YEAR AFTER THE SERVICE WAS PERFORMED.” (Id., see codes on Explanation of Benefits p. 7 of 8). This denial is obviously contrary to law and the Court’s Order, and is a prime example of the need to clarify the relief in the manner described in Plaintiffs’ Proposed Order. It is apparent that, without further directions from the Court, Defendants will continue to deny ABA therapy coverage under the Basic Program. Plaintiffs agree that Defendants’ proposed notice is, for the most part, acceptable, with a few qualifications set forth below. Thus, the relief requested in the proposed order attached to Plaintiffs’ Motion to Clarify Class Certification and Relief should be granted with the notice modifications set forth below. A modified proposed order, that includes changes to the notice provisions, is attached hereto. II.

ARGUMENT Entry of Plaintiffs’ proposed order clarifying class certification and relief is necessary because the defendants misunderstand, or intentionally disregard, the law governing class actions. A.

1.

Plaintiffs’ Complaint tolled claims for all potential class members.

The defendants have erroneously determined that the Court’s Order granting Plaintiffs’ Motion for Summary Judgment only requires TRICARE to provide “reimbursement for claim payments for dates of service of February 16, 2010, or later, for beneficiaries in the United States

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and its territories, and for February 16, 2008, or later, for those overseas.”1 (See DE 123, Defendants’ Opposition to Plaintiffs’ Motion to Clarify Class Certification and Relief, p. 9 n. 4 (citing O’Bar Decl. ¶ 20)). The defendants base this coverage date on the date the Court granted class certification, February 16, 2011. (See, e.g., DE 123, Defendants’ Opposition, p. 8 n. 3). Defendants cite no legal support, because there is none, for the proposition that the ultimate relief granted runs from the date a class is certified. It is well established that the Complaint filed on behalf of a putative class tolls claims for all potential class members. Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983); American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974). “Absent tolling, prospective plaintiffs and potential class members would be forced to intervene or to bring their own individual suits in order to prevent a later time-bar. Thus, tolling is necessary to foster judicial economy.” Fleck v. Cablevision VII, Inc., 807 F.Supp. 824, 826 (D.D.C. 1992)(citing Crown, Cork, 462 U.S. at 350). Under Defendants’ interpretation of the class relief granted in this case, potential class members who had valid claims for reimbursement pending on March 4, 2010, for services rendered prior to February 16, 2010, and believed their claims were covered as part of the putative class, are now out-of-luck simply because the preliminary class certification was not granted until February 16, 2011. This policy is clearly contrary to law and violates the Court’s Order. Since Plaintiffs’ Complaint was filed on March 4, 2010, and TRICARE covers claims up to one-year in the past for beneficiaries in the United States and its territories and the previous three years for those overseas, the Court’s Order requires TRICARE to, at the very least, reimburse dates of service of March 4, 2009, or later, for beneficiaries in the United States and its territories, and for March 4, 2007, or later, for those overseas. This class is Subclass A set Plaintiffs’ Motion to Clarify only addressed the coverage dates for beneficiaries in the United States and its territories. Plaintiffs assume that once the coverage date for domestic claims is solidified the defendants will apply the corresponding extended date for overseas claims. 1

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forth in the proposed order attached to Plaintiffs’ Motion to Clarify Class Certification and Relief. 2.

Plaintiffs, through the class action complaint, were and are seeking ABA therapy coverage on behalf of all potential class members.

Any claim for ABA therapy that was previously denied by TRICARE, and for which the period to appeal the denial had not expired as of March 4, 2010, was, and is, undoubtedly a potential class member in this case. (See DE 1, Complaint; see also, DE 73, Plaintiffs’ Renewed Motion for Class Certification). Since the applicable statute of limitations is 6 years, Plaintiffs were seeking, inter alia, ABA therapy coverage under the Basic Program on behalf of all TRICARE beneficiaries with autism who on or after March 4, 2004, made a claim for coverage of ABA therapy that was denied. As noted above, Plaintiffs’ class action complaint tolled all of these claims. Crown, Cork, supra, 462 U.S. 345. Of further import, Defendants acknowledge that the named Plaintiffs were “currently seeking” coverage throughout the pendency of this case. (See DE 123, Defendants’ Opposition, p. 9 n. 4). Because of the class nature of the claims, Defendants should also realize that all individuals who could have brought the same claims as the named Plaintiffs on the date the class action complaint was filed were also seeking, through the class representative and class mechanism for relief, ABA therapy coverage throughout the entire period this case has been pending. Defendants’ acknowledgment that the named Plaintiffs’ claims are covered by the Court’s summary judgment order renders their objection to “retroactive reimbursement claims” incomprehensible. It is well established that the date a claim is determined valid is not the date that controls the duty to reimburse. See Jimenez v. Weinberger, 523 F.2d 689, 704 (7th Cir. 1975)(affirming the judgment of the district court “ordering the Secretary to make payments to 5


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the class members back to the date of the filing of their original applications for benefits.”)(citing Richardson v. Griffin, 409 U.S. 1069 (1972)). This Court’s summary judgment order determined that Plaintiffs’ claims and those of similarly situated class members were valid and should have been paid. Thus, DoD is required to reimburse these claims. The internally contradictory reimbursement policy recently issued by Defendants at least partially acknowledges this fact. By allowing benefits for dates of service from February 2010, Defendants acknowledge that the Court’s Order provides for retroactive relief.

Defendants simply choose a cutoff date for

retroactive relief that is incorrect, arbitrary, and contrary to law. The initial basis for the Complaint was the DoD’s denial of Z.B.’s claim for ABA therapy coverage for service on May 21, 2007. (See DE 1, Complaint, exhibit 1).

Defendants

acknowledge, or at least seem to want to give this Court the impression, that they are required to reimburse for the ABA therapy services provided to Z.B.. (See DE 123, Defendants’ Opposition, p. 9 n. 4: “Because the named plaintiffs’ claim was pending at the time of class certification, the agency is processing that claim. See O’Bar Decl. ¶ 20.”).2 Defendants also acknowledge that eligibility for reimbursement is governed by the date of service. (See DE 123, Defendants’ Opposition, p. 9 n. 4: “DoD has agreed to provide reimbursement for claim payments for dates of service of February 16, 2010, or later . . .”)(emphasis added). Of course, the date of service selected by Defendants as the applicable date is after the first date of service for which the named plaintiffs were seeking reimbursement -- May 21, 2007. Once again, Defendants have entangled themselves in contradictions while trying to narrow the scope of the reimbursement for ABA therapy. In fact, TRICARE continues to deny payment for Z.B.’s claims for ABA therapy services. (Ex 2, TRICARE denial of Z.B. benefits 9/11/2012). These continual denials may be the subject of a forthcoming motion to show cause why Defendants should not be held in contempt for violating this Court’s summary judgment order. 2

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While the defendants inexplicably make one-year prior to the date class certification was granted the first applicable “date of service,” at the time class certification was granted the Plaintiffs were seeking reimbursement of their own claims and claims of similarly situated class members from March of 2004. (See DE 1, Complaint; DE 73, Renewed Motion for Class Certification). At the very least, Plaintiffs were obviously seeking reimbursement for service provided from May 2007, the date of service for the denial attached to Plaintiffs’ Complaint! Clarification is needed because the defendants apparently fail to realize the impact of a class-wide complaint and applicable relief. These class members, whose claims denials were appealable at the time of the Complaint, are members of Subclass B described in the proposed order attached to Plaintiffs’ Motion to Clarify Class Certification and Relief (in combination with Subclass A). 3.

TRICARE beneficiaries with autism who received ABA services and were deterred from filing a claim should be reimbursed.

Defendants appear to recognize that the one-year claim filing deadline should be waived because it would be unjust to deny claims for services rendered past the one-year claims filing deadline when TRICARE had been denying all claims under the Basic Program up to the date of this Court’s Order. For example, Defendants appear willing to accept a claim today for services that were rendered in February 2010. While Plaintiffs and Defendants agree on that principle, Plaintiffs and Defendants disagree about how far past the one-year claim filing deadline is reimbursement required. As set-forth above, Plaintiffs assert that all claims for ABA services provided on or after March 4, 2004, should be reimbursed.3 To be precise, Defendants apparently agree with 3

In the event the Court happens to specify a shorter coverage period, those otherwise qualified beneficiaries who received services during the ultimately specified time period and were deterred from making a claim should be specifically included in the class. 7


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this approach because their current understanding of the relief ordered includes all claims for services where the services were provided domestically on or after February 16, 2010, even where the claim is filed now, potentially more than one year after the services were rendered. (See DE 123, Defendants’ Opposition, p. 9 n. 4: providing that the coverage relates to the dates of service of February 16, 2010, or later.) Also, the defendants do not contest the points raised by Plaintiffs with respect to deterred claimants. See DE 121, Statement of Points and Authorities in Support of Motion to Clarify Class Certification and Relief, pp. 12-26. This waiver of the one-year claim filing deadline is consistent with the administrative rules providing that it may be waived in cases of “retroactive eligibility determinations.” 199.7(d)(2)(i)(A). As noted above, Defendants acknowledge this case involves a “retroactive eligibility determination.” (Ex 1, HealthNet Notice of Changes in ABA Coverage: “This benefit is retroactive to March 5, 2010.”). While the regulation provides that the one-year deadline “may” be waived in such cases, waiver would in fact be required to fulfill the statutory mandates and to allow beneficiaries to access the benefits they are entitled to pursuant to 10 U.S.C. §§ 1076, 1077 and 1079 (providing, inter alia, that eligible dependents are “entitled, upon request, to the medical and dental care prescribed by section 1077[.]”) The one-year limitation should also be waived in cases involving “administrative error” including “misrepresentation” and “mistake” by TRICARE, 199.7(d)(2)(i)(B); and when “other waiver authority” of TRICARE should be exercised where “the waiver is necessary in order to ensure adequate access for . . . beneficiaries to health care services,” 199.7(d)(2)(i)(E). In this case, TRICARE’S denials of ABA therapy for children with autism were necessarily based in either “misrepresentation” or “mistake” or some combination of the two. Given the mandates of the statute and authority to waive the one-year claim filing deadline in cases such as this, relief

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for deterred beneficiaries is required. These individuals are included in Subclass C set forth in the proposed order attached to Plaintiffs’ Motion to Clarify Class Certification and Relief. 4.

Plaintiffs have not previously had an opportunity to clarify the class issues.

The defendants erroneously assert that Plaintiffs have had 16 months to clarify the issues affecting class-wide relief. This is incorrect. In February 2010, the Court entered an Order certifying a preliminary class. (DE 97, Order Denying Motion for Preliminary Injunction and Certifying a Preliminary Class). The Court’s preliminary definition was the class Plaintiffs proposed in their Motion for a Preliminary Injunction. (Ex 3, February 15, 2011 Hearing Transcript, pp. 2-3). This proposed definition was only meant to apply to the “preliminary injunction class.” Plaintiffs always sought a more specific class that included all denied ABA therapy claims for children with autism from 2004, or from at least May 21, 2007, the date of Z.B.’s denial – the representative denial upon which the Complaint was based. (DE 73, Plaintiffs’ Renewed Motion for Class Certification).

Furthermore, Plaintiffs were always

seeking ABA therapy coverage not just for themselves but also for all similarly situated individuals with autism whose claims for ABA therapy coverage had been denied since March 4, 2004. Plaintiffs did not previously file a motion seeking a more explicit definition of the class entitled to retroactive benefits because Plaintiffs wanted to encourage the time-starved court to apply its limited time and resources to first deciding whether kids who needed to receive ABA therapy now were entitled to coverage so that their treatment was not delayed. (See Ex 3, February 15, 2011 Hearing Transcript, pp. 2-3, 55-56). The most pressing relief need was for current coverage so that (1) treatment parents cannot afford to pay for is not delayed and children do not suffer irreparable injury; and (2) families do not incur crippling debt, bankruptcy, and

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radically diminished life opportunities because they are forced to spend large portions of their assets, including mortgaging and selling homes, to pay for desperately needed ABA therapy. Everyone agreed that issues regarding complete retroactive benefits and the definition of the class entitled to receive retroactive benefits could be decided subsequently. (Ex 3, February 15, 2012 Hearing Transcript, pp. 55-56). Parents who paid out-of-pocket and have not been reimbursed by TRICARE because of unlawful denials are now entitled to relief, either based on the Court’s extant Order or a modified order. Plaintiff was always seeking ABA therapy coverage for these individuals, therefore, they should be deemed included in the relief the Court has already ordered be provided to “persons seeking” ABA therapy coverage at the time the class was preliminarily certified. DE 120, Order Granting Plaintiffs’ Motion for Summary Judgment. Plaintiffs merely seek entry of the modified proposed order because Defendants refuse to provide the relief this Court has already ordered. Alternatively, if the Court’s extant order was not intended to fully address retroactive benefits we ask the Court to do so now. 5.

The formal review did not cut-off class claims.

Defendants appear to believe that their shifting rationales for denying ABA therapy cutoff all claims preceding the formal review decision. This is obviously not the case. The claims denied from March 4, 2004 were pending via the putative class action complaint at the time the DoD “re-opened” Z.B.’s denial. The subsequent denial rationale issued on October 29, 2010 then applied to all claims for ABA services. The formal review decision was a determination that ABA services were not covered under the TRICARE Basic Program. This determination considered whether ABA therapy would be covered as a Basic Program benefit, and necessarily applied to Z.B.’s claims and all similarly situated claims that were then pending via the class

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action complaint. This formal review determination has now been overturned by the Court’s summary judgment order, because the determination was arbitrary, capricious and contrary to law. Defendants now claim that they should be afforded a third opportunity to review ABA therapy coverage. As if they had no prior opportunity, the defendants claim that “[o]n remand, the agency will also have the opportunity to address other regulatory restrictions under the Basic Program[.]” In support of this proposition, Defendants cite 32 C.F.R. § 199.4(g). 199.4(g) includes, not including sub-parts, 74 enumerated exclusions and limitations. These include the “not medically or psychologically necessary” exclusion, 199.4(g)(1), and the “unproven” exclusion, 199.4(g)(15). Clearly, the defendants had a previous opportunity to consider these exclusions and did so. On the previous remand, Defendants stated only two reasons that could apply to a denial of ABA therapy for children with autism. No other exclusions were referenced in support of the previous denial, because they could not possibly apply to the issue at hand. Notably, Defendants do not now suggest any new provision that they believe could possibly apply on remand. The administrative record more than adequately establishes the class members’ rights to benefits for ABA therapy. Further remand would be useless, prejudicial, and is simply another ruse in a lengthy series of ruses to avoid paying for an expensive therapy. The Court should not entertain Defendants’ attempts to reargue issues that the Court has already decided. See Taylor v. Comm’r of Soc. Sec., 2010 U.S. Dist. LEXIS 57190, *6-9 (N.D. Ohio 2010)(Held: no Rule 59 remand for reconsideration of decision if entitlement to benefits is already adequately established by record and remand would be useless; case remanded solely for the award of benefits to which

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plaintiff is entitled.)(See also, DE 124, Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Reconsideration). Defendants are required to reimburse claims for all class members as discussed above. Defendants’ attempts to deny, nullify, and delay by sabotaging the class mechanism for relief and issuing shifting rationales for the denial of individual claims for ABA services should be nipped in the bud with the entry of Plaintiffs’ proposed order clarifying class certification and relief. B.

Entry of Plaintiffs’ proposed order clarifying class certification and relief does not require the Court to make any new decisions on the merits – Plaintiffs are simply fulfilling the duty of class representatives to make sure the appropriate relief is provided to all qualified TRICARE beneficiaries.

The Court is not being asked to make any new medical judgments. Defendants’ policies have explicitly been providing coverage for ABA therapy under ECHO since April 1, 2005, thus acknowledging it is proven and effective at least as far back as April 1, 2005. (Ex 4, TRICARE Policy Manual Ch. 9 Sec. 9.1, as of December 7, 2004).

In fact, Plaintiffs are aware of

reimbursements for ABA therapy dating back to 2001, under the program that preceded ECHO. The Court has already held that ABA therapy coverage should have been provided under the Basic Program because it is treated as proven under ECHO, and it should be covered under the Basic Program at least as far back as it was provided under ECHO. Further, a substantial number of the studies contained in the administrative record are from 2004 or earlier and establish ABA as an effective treatment for autism, and nearly all of the studies pre-date the defendants’ arbitrary effective date of February 16, 2010. (See AR Vol III, tab 9 through 9-58). In his 1999 report, the Surgeon General stated that 30 years research demonstrated the efficacy of ABA therapy as a treatment for autism. (AR Vol III, 8-5-14, Mental Health: A Report of the Surgeon General). See also, Parents League for Effective Autism 12


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Servs. v. Jones-Kelley, 565 F. Supp. 2d 905, 916-917 (S.D. Ohio 2008), aff’d, 339 Fed. Appx. 542 (2009)(holding in 2008 that “ABA therapy, when recommended by a licensed practitioner of the healing arts, is a medically necessary service which provides the maximum reduction of a mental or physical disability.”) At least as far back as 2007, the DoD was reporting to Congress that ABA therapy was generally accepted in the medical community as an effective treatment for autism. (AR Vol III, tab 8-2-7, DoD 2007 Report, p. 408). In fact, prior to the denial of ABA therapy on remand, in October, 2010, DoD never claimed ABA therapy was unproven. Instead, it claimed during the entire time period, 2004-2010, that ABA therapy was extremely effective, but that it could not be provided under the Basic Program because it was subject to the “Special Education” exclusion. The defendants should not be permitted to re-litigate these issues. Further, Plaintiffs claims in this case were class claims. All denials from 2004 forward were pending during the entire duration of this case. The appeal of these denials, brought by the class representative, has resulted in a determination that ABA therapy must be provided. Because the record that the Court reviewed in this case applied to all of the claims of every class member, all “medical” determinations required to render Judgment have already been adjudicated based on the record in this case. The Court has determined that ABA therapy is proven and effective and TRICARE must, therefore, cover it under the Basic Program. Since ABA therapy is medically necessary, TRICARE must allow all claims permitted within the statute of limitations. Based on the date of Plaintiff’s Complaint, this includes all claims from March of 2004. C.

Defendants’ post-Judgment reimbursement policy is an improper attempt to nullify the Court’s Judgment, and is not in accordance with “Applicable TRICARE Guidelines.”

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Defendants’ new policy directive, which improperly excludes reimbursement for any ABA services, delivered in conformity with the model that is the universally accepted standard and which imposes requirements that are both radically more stringent and are present nowhere in the private or public sector, is an illegal attempt to nullify this Court’s ruling that Defendants must provide ABA coverage to Basic Program beneficiaries. This Court’s ruling setting aside Defendants’ policy of denying ABA Basic Program coverage – the result of Plaintiffs’ two-yearlong, hard fought, comprehensive assault on Defendants’ ever-shifting policy – has tremendous significance for children with autism and their families. It is only because of Defendants’ posthoc, bad faith attempts to frustrate this Court’s ruling that its ruling needs to be revisited. 1.

The import of this Court’s ruling is clear.

In its July 26, 2012 Order granting summary judgment to Plaintiffs, this Court held, inter alia, as follows: “the Agency is enjoined from denying qualified beneficiaries coverage for Applied Behavioral Analysis (ABA) therapy on the ground that ABA therapy is not a covered benefit under the TRICARE Basic program,” and “this case is REMANDED to the Agency with instructions that ABA therapy coverage be provided to Basic Program beneficiaries who otherwise qualify for reimbursement and that such reimbursement be provided in compliance with the applicable TRICARE guidelines for the expenses incurred by qualified beneficiaries to acquire ABA therapy for their children.” (DE 120, p. 1) (emphasis added). The Court enjoined DoD from treating ABA as not a covered benefit under the Basic Program, and the Court ordered DoD to provide ABA coverage in accordance with applicable TRICARE guidelines. DoD has flagrantly violated these two mandates of the Court. First, the Court’s ruling was made in the present tense, and meant that DoD was required to start providing ABA coverage according to its applicable guidelines for reimbursement that existed on the date of

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judgment, July 26, 2012 (DE 120, p. 1). DoD was certainly not expected to instantly promulgate a new reimbursement policy that effectively nullifies the Court’s ruling. Second, by issuing its new reimbursement policy, DoD is now effectively “denying qualified beneficiaries coverage for ABA” – which this Court ordered it not to do (DE 120, p. 1). By radically narrowing the universe of ABA providers whose services DoD will reimburse to such a degree that is nowhere else present in the health insurance marketplace (supporting affidavits and other highly pertinent support is forthcoming in a motion by Plaintiffs to enforce the judgment), DoD has established a requirement that effectively makes ABA therapy not available as a benefit under the Basic Program. 2.

The illicit purposes and consequences of DoD’s new reimbursement policy.

The consequences and purpose of DoD’s new BCBA-only reimbursement policy under the Basic Program, in combination with its continued BCBA/BCaBA/ABA Tutor (i.e., tiered) reimbursement policy under ECHO, is to restore this case to the status quo ante. The exclusion of BCaBAs and tutors from the reimbursement model denies beneficiaries of the ability to find a provider of ABA services that will qualify for reimbursement. The BCBAs who are eligible for reimbursement develop the treatment plan and supervise BCaBAs and tutors. There are simply not enough BCBAs to provide the day to day therapy that children with autism need 25-40 hours per week. Indeed, if BCBAs were required to provide 25 hours of ABA therapy per week to one patient they would be unable to serve more than one or two patients. There is no way any BCBA would give up serving other children with autism, whom are covered by insurance plans that reimburse tutors, in order to serve one or two children covered by TRICARE. DoD’s new policy that applies only to ABA coverage under the Basic Program and not to ABA coverage under ECHO: (1) maintains the capped ECHO coverage that existed prior to the

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Court’s July 26, 2012 decision (with ABA coverage only available to active-duty families in an amount up to $36,000/year and not at all available to retiree families); and (2) resurrects the nocoverage policy under the Basic Program that existed prior to this Court’s decision by effectively eliminating the Basic Program coverage that the Court ordered (This Court ordered that ABA coverage shall be available to both active duty and retiree families in the amount that is medically or psychologically necessary, with no dollar cap). 3.

DoD’s New Policy Was Not Issued in Accordance with Its Existing Guidelines.

In a forthcoming motion to enforce the Court’s judgment, Plaintiffs will present reasons – supported by affidavits and other compelling evidence – why this Court should find that Defendants’ new BCBA-only reimbursement policy is nothing more than an illegal (and morally repugnant) attempt to nullify the Court’s ruling that should be set aside. However, for purposes of this reply brief, Plaintiffs will simply address the fact that DoD did not issue its new reimbursement policy in accordance with its “applicable TRICARE guidelines” that existed on the date of judgment, July 26, 2012, and thus acted in violation of the Court’s Order (DE 120, p. 1). This is just a sliver of the body of material and evidence that exposes Defendants’ new policy as the ploy that it is. i.

BCaBAs are certified at the full clinical practice level to provide ABA.

DoD’s own regulations defining who is an “authorized provider” to deliver services under the Basic Program plainly encompass BCaBAs who render ABA services.

Yet, in

violation of this Court’s holding, DoD’s new policy specifically excludes “[i]ndividuals certified by the BACB as a Board Certified Assistant Behavior Analyst (BCaBA),” who DoD claims “are not TRICARE-authorized ABA providers under the TRICARE Basic Program.” (Doc. 121, Ex.

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3, ¶ 8.0) (emphasis added). This is improper. DoD’s regulations state that an authorized provider under the Basic Program includes someone who has a “certification by a Qualified Accreditation Organization.” The Behavior Analyst Certification Board (BACB) is a Qualified Accreditation Organization, as defined in 32 C.F.R. 199.2(b), and BCaBAs are certified by the BACB. (Ex 5, BACB Guidelines, pp. 6-9, 24-27, 40). Furthermore, BCaBAs possess certification from a Qualified Accreditation Organization at “full clinical practice level” as contemplated by 32 C.F.R. 199.6(c)(2)(ii). In its TRICARE Policy Manual, DoD defines “full clinical practice level” as follows: Full clinical practice level is defined as an unrestricted license that is not subject to limitations on the scope of practice ordinarily granted all other applicants for similar specialty in the granting jurisdiction. Individuals placed on probation or whose license has otherwise been restricted are not considered to be practicing at a full clinical practice level. The services provided must be within the scope of the license, certification, or other legal authorization. (Ex 6, TRICARE Policy Manual 6010.57-M, ch. 11, sec. 3.2, ¶ 2.1) (emphasis added). The definition of the phrase “full clinical practice level” starkly contrasts with DoD’s recent, totally abusive application of the phrase to altogether exclude BCaBAs from Basic Program reimbursement. According to DoD’s own Policy Manual, the phrase “full clinical practice level” simply means not having been subject to some undesired restriction on the scope of practice “ordinarily granted” to other applicants to practice a similar specialty, with the sole examples being the undesired event of having been “placed on probation” or where one’s “license has otherwise been restricted.” (Id.). This requirement simply means that a board-certified BCaBA is deemed to be certified at less than a “full clinical practice level” if for some reason – be it a regulatory violation, criminal transgression, or some other reason warranting restriction – he sustains a narrowing or reduction in the customary scope of practice for a BCaBA.

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The Policy Manual’s use of the phrase “ordinarily granted” further confirms this obvious meaning, as it makes clear that being at less than “full clinical practice level” simply means having less than the full scope of practice that is “ordinarily granted” to the particular certification at issue. Here, it means that a BCaBA, who is in good standing and fully certified by the BACB, which carefully promulgates, maintains, and closely monitors BCaBAs (see Ex 5, BACB Guidelines), meets the relatively minimal qualification of being at “full clinical practice level” as that phrase is defined in the Policy Manual. Defendants, however, have manufactured an improper requirement, found nowhere in the regulations or manuals, that being at a “full clinical practice level” for one’s particular type of ABA-provider certification (e.g., fully certified as a BCaBA with no restrictions) instead means that only the most highly qualified type of professional (e.g., BCBA, physician, Ph.D.) may render ABA therapy. But that is not the standard that is employed everywhere else in the ABA marketplace.

Of course, DoD does not refuse to reimburse a nurse for administering a

medication simply because she is not a physician, where a physician could also perform the same service but as a more highly qualified type of certified provider.

Indeed, a manufactured

requirement that ABA only be provided by the very most highly qualified type of provider would be plainly contrary to DoD’s definition of “medically or psychologically necessary” services, which is “[t]he frequency, extent, and types of medical services or supplies which represent appropriate medical care and that are generally accepted by qualified professionals to be reasonable and adequate for the diagnosis and treatment of illness, injury, pregnancy, and mental disorders[.]” 32 C.F.R. 199.2(b) (emphasis added). To require that only the most highly qualified type of provider may render care that can be appropriately, reasonably, and adequately rendered by another fully-certified professional at a lower cost would be directly contrary to the

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Case 1:10-cv-00373-RBW Document 127 Filed 10/01/12 Page 19 of 21

reasonable-cost requirement in the regulations. In any event, as stated in the BACB guidelines themselves, a certified BCaBA can practice at the same scope as a BCBA (who DoD deems an authorized ABA provider). (Ex 5, BACB Guidelines, p. 25). D.

Defendants’ proposed notice procedures are acceptable, with conditions.

DoD has informed the Court and Plaintiffs that it will provide notice to class members of the relief granted in this case “by TRICARE Manual changes, website postings, news releases, beneficiary email updates, beneficiary newsletters and the dissemination of other beneficiary handbooks, flyers and other materials.” (DE 123, Defendants’ Opposition, p. 14). These forms of notice are acceptable to Plaintiffs. In addition to these methods of service, DoD should also be required to direct mail notice to all potential class members who are identified through the defendants’ records. This will not add to the cost of administration, because TRICARE must reprocess these claims anyway that were wrongfully denied, just as it has acknowledged with respect to Z.B.’s 2007 claim for services. Even if this mailing does add cost, it is reasonable and expected in the course of notifying potential class members by the best means practicable, as required under the law. To assure that Defendants actually comply with the notice they are promising to provide, the Court should require the following: First, Defendants should be required to file with the Court, within 14 days, a copy of each form of notice it intends to disseminate or that it already has disseminated. For each, Defendants should specify the method of providing such notice, the number of beneficiaries such notice is expected to reach, and the time frame proposed for each form of notice. This step is required in order to allow the Court and Plaintiffs the opportunity to review and comment, if needed, on the sufficiency and accuracy of the notice provided.

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Case 1:10-cv-00373-RBW Document 127 Filed 10/01/12 Page 20 of 21

Second, Defendants should be ordered to file with the Court, within 14 days after disseminating all forms of notice, a certification of compliance including each form of notice and the exact procedure that Defendants employed for disseminating each form of notice. These changes are reflected in the modified proposed order attached hereto. CONCLUSION For the reasons set forth above and in Plaintiffs’ motion to clarify, this Court should enter the attached proposed order clarifying the scope of the Plaintiffs’ class and the relief provided. Respectfully submitted,

By:

MANTESE HONIGMAN ROSSMAN AND WILLIAMSON, P.C. Attorneys for Plaintiffs __/s/ _________________ David M. Honigman (MI - P33146) dhonigman@manteselaw.com Gerard V. Mantese (MI - P34424) gmantese@manteselaw.com Brendan H. Frey (MI - P70893) bfrey@manteselaw.com Brian M. Saxe (MI - P70046) bsaxe@manteselaw.com 1361 E. Big Beaver Road Troy, MI 48083 (248) 457-9200

__/s/___________________________ Bruce J. Klores (DC - 358548) bjk@klores.com Scott M. Perry Klores Perry Mitchell, P.C. Attorneys for Plaintiffs 1735 20th Street NW Washington, DC 20009 (202) 628-8100 John J. Conway (MI - P56659) john@johnjconway.com John J. Conway, PC 20


Case 1:10-cv-00373-RBW Document 127 Filed 10/01/12 Page 21 of 21

Co-counsel for Plaintiffs 26622 Woodward Ave., Ste. 225 Royal Oak, MI 48067 (313) 961-6525 Dated: October 1, 2012

CERTIFICATE OF SERVICE I hereby certify that I served Plaintiffs’ Reply in Support of Motion to Clarify Class Certification and Relief on all defendants in this matter electronically via CM/ECF, this 1st day of October 2012.

__/s/_______________________ Brendan H. Frey

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1 Oct Filings by Plaintiffs Berge Family