We Sued Tricare and Won … Sort Of


There are certain events in your life that remain with you forever. The day you get married, the birth of your children, the deaths of your parents and siblings and the day your child is diagnosed with autism. For me, that day was August 11, 2007 at 3:15 p.m.

It is a day, a time and a memory that will be with me until I die. “Your son has severe autism syndrome present. I’m sorry. Here are some handouts that may help. Good luck.” These are the words the diagnosing physician uttered about my son, Zachary. He had turned two a week earlier.

Little did I know that that moment would lead to me suing DoD and Tricare and winning … sort of.

I quickly learned that Applied Behavior Analysis (ABA) was the gold standard of autism therapies. Physicians, psychiatrists, psychologists, autism researchers and mental health professionals regard ABA therapy to be the most effective treatment for autism. Indeed, it is widely regarded as the only effective treatment for autism.

Initially, it typically requires at least 1 to 4 years of year-round treatment 25 to 40 hours a week. After this initial burst of concentrated treatment, the child make substantial progress in the great majority of cases, and treatment intensity is slowly reduced over a period of years.

I immediately enrolled Zachary at an ABA therapy center, where I expected Tricare, which continues to cover us even after my husband’s retirement,  to cover the 40 hours of therapy each week recommended by my son’s developmental pediatrician.

If my son was ever to lead a normal life he would need the intervention of this medically necessary therapy.

And so I was shocked when, only one month after he started treatment, I received a letter from Tricare refusing to pay. I appealed, appealed and appealed. I was denied, denied and denied. Tricare, we were told, covers no therapy – medically necessary or otherwise – for retirees.

Tricare insisted that the most – and almost always only – effective autism treatment was not a covered benefit. In one phone conversation, a Tricare representative hissed: “If you don’t like the way the legislation is written, then contact your Congressman.”

Which I did.

I appealed to my congressman who took up my cause. He, too, was rebuffed. I appealed to the number two in charge of Tricare, Gen.  Elder Granger, and was rejected again.

Finally I appealed to the Secretary of Defense. Like everyone else in the Tricare bureaucracy, a curt rejection, with little or no explanation, was his response. I felt defeated.

And that’s when we headed to court.

With lawyer Dave Honigman and his team at our side, I learned that there were more than 22,000 military families with an autistic child confronting the same Tricare refusal to pay for ABA therapy just like mine. So Dave filed a class action lawsuit in federal court in Washington, D.C. on behalf of military families to compel the DoD to pay for the therapy.

Two years passed before we received both victory and, as it turned out, defeat at the same time.

Dave argued that the DoD was violating its legal (and moral) duty to pay for medically and psychologically necessary health care for the children of active duty and retiree families, simply to cut spending on health care and transfer those dollars to other DoD projects. Military families simply can’t compete with the highly-paid, high-powered special interests lobbying DoD to throw money their way, even at the expense of military families who sacrifice and risk everything for their country.

Judge Reggie Walton sided with us. Calling Tricare’s refusal to pay for ABA “arbitrary and capricious,” he ordered them to pay for ABA therapy for the children of active duty and retired military families – however much was medically necessary.

But despite our win, Tricare has managed to put policies into place not just effectively getting around the order, but also possibly yanking care from previously covered Active Duty families.

Just one month after the court decision, they have proclaimed that sure, they’ll cover ABA therapy, but only if it is administered directly by a Board Certified Behavioral Analyst. They will not pay, they say, for therapy delivered by ABA tutors, therapists or other paraprofessionals – something they regularly covered for active duty children before the July court order and the way that ABA is virtually always administered.

That’s like saying they’ll only cover the work of an actual doctor – not care given by nurse practitioners or any other trained and qualified medical professional under a doctor’s supervision.

It makes no sense.

This is a political issue. President Obama routinely uses health care as a political pawn, claiming that a Republican administration would leave autistic and Downs Syndrome kids, who also use ABA, to fend for themselves without health care coverage. And yet his administration is who has repeatedly and shamelessly fought to block military children from receiving care.

We are the little people fighting the government machine to give our children the care they need and the coverage military families have earned and continue to earn through service.

Tricare’s message was always that fighting us is futile — military families financially and emotionally stretched to the max, courageously sacrificing for their country and their child with a disability, don’t have the financial and emotional resources to hire lawyers and withstand the challenges of a multi-year court battle to beat us.

But we do. Our children have no voice, so we must be their voice. Parents, politicians, people in authority and leadership must stand firm and fight the battle so that our children receive services they desperately need. It is absolutely shameful how Tricare continues to stall to avoid paying for ABA therapy for the military community.

Please help me spread the word about what is happening so we can move forward, and make changes for our children and not against them. They deserve the same opportunity to pursue life, liberty and happiness that all of us have enjoyed.

If you have questions about how this ongoing war for our children’s future affects your family, or information that may help us, please e-mail Dave Honigman, lead counsel for the class of military families, at dhonigman@manteselaw.com, or phone him at 248-457-9200.


Dawn Berge is the of wife Ret. MSGT Ken Berge and mom to Carson and Zachary.

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  • Jodi

    Great post, Dawn. My son Ryan, is at Zachary’s school. It unfathomable to me that in another 5 years, my son will magically be cured of autism and not need therapy anymore, because my husband will retire, and God forbid he should die in combat, or be disabled serving his country that he loves so dearly. What Tricare is doing is WRONG…

  • tressays

    I admire your courage! Thank you for fighting for us all.

  • Matt K in Alabama

    As a recently retired Soldier and father of a young autistic child who has benefitted exceptionally from ABA (tutors & BCBAs) I hope and pray that we can overcome the red tape 100%.

  • Karen – USMC wife

    The Department of Defense and TRICARE have been aware of this policy deficit for years. They have the ability to fix this problem…and have CHOSEN not to. At a time when we demand so much from our military families, it is sad that military families have to resort to Congressional and Judicial intervention to obtain the medically recommended care their children need…and when they obtain help from a fair minded judge….TRICARE puts up even more barriers preventing access to care. This is shameful!!!! Our military families have earned and deserve better.

  • Katena

    I am a mother of a child on a spectrum thank you for fighting for us. We retire in 3 years and I working on alternatives to find care for JJ. I think it wrong that our children have to fight and its even harder when we get the diagnosis. From the bottom of my heart thank you.

  • Maureen

    The devil is in the details!!!! This is beyond disgusting!! I can’t believe our Congress, Senate and most importantly those in uniform in high command continue to allow Tricare management to make policy based on their mission, the bottom line, rather then why they exist in the first place. TO SERVICE MILITARY FAMILIES!!!! When is someone in uniform or at the DOD going to remember these are the families that sacrifice the most for our county and HELP THEM not find ways to block them at every turn. I would love to hear what our current and prospective President have to say about this. Do they even know that many states require better treatment of their special needs community then the DOD requirese for our military families. I am truly disguised, hurt and embarrassed as a military spouse and American that the battle line just keeps getting moved around, in the hopes, they can just ware these already stretch military families down.

  • Guest

    Does anyone know if regular “civilian” private insurance would cover this? I am just curious.

    • Dawn

      Yes, some civilian insurance pays for this treatment but it depends on the laws in each state as well. Indiana has very liberal laws for ASD. Indiana insurance companies have to pay for evidence based practice.

    • If you mean, “Do DoD civilians get ABA coverage”, the answer has been “no”. OPM (the federal government’s Human Resources office) agreed to allow health insurers to cover ABA beginning in 2013 if they chose to do so. Not surprisingly most did not. In fact, MD, DC and Northern VA where the majority of federal government employees live and work will not have coverage. Only part of California will have coverage; no providers in my state will offer ABA in their plans. Unfortunately, this is true of most states.

  • Jodi

    Guest- it varies from state-to-state. Many state laws require coverage of ABA therapy, but most of the laws have loopholes for people who are on federal insurance policies.

    • Guest

      OK thanks. I just feel like there is a lot that isn’t covered for active duty soldiers too, but that isn’t covered privately either. For example, soldiers who jump out of planes don’t get chiropractic care. I have my own private insurance through my employer and it isn’t covered there either. So I am waiting for these suits to increase the cost of care for AD and retirees then people will complain about the increased cost. It’s like a lose lose almost?

      • When you are talking about young children with neurological deficits (not just kids with autism), almost always it is more cost effective to treat early and often than not…because without treatment (or not enough), these same kids become more of a burden on society and end up costing significantly more than they would have had they been treated. That’s hard to express to TRICARE who only looks at their ten year budget cycle…not the long term costs associated with the actions they are taking.

        • Guest

          I understand that but when the cost goes up for care people will turn around and complain.

      • Simona

        ADSM would only have to get an authorization from the MTF they are assigned to. No, it’s not covered for the dependents or retirees.

    • A state having a law requiring coverage of ABA has no effect on federal employees or the military because our insurance is federally regulated and state law has no effect on it.

  • guest

    Thank you for sharing your story. Information is POWER! While I agree that ABA therapy MAY be helpful, it has not been helpful to many kids I’ve worked with. In our state we’re hearing numbers around 50%. Also, there is absolutely no CONCLUSIVE research that compares the outcomes of one therapy against another. The problem with making blanket statements like “ABA is the only regarded effective treatment” actually shuts doors for many families [especially when ABA doesn’t work for them]. Biomedical interventions, sensory integration, occupational therapy , speech therapy are ALL under the gun with lack of coverage because ABA is touted as the ONLY effective treatment. Not true.

    • Melissa

      Actually, ABA is the only researched based intervention that is proven effective for children with autism. You will be hard pressed to prove efficacy with most other interventions, especially related to increasing communication and decreasing maladaptive behaviors.

  • Julie Taylor

    THank you Thank you for all your hardwork & determination… We just got word we were approved for the ABA coverage, again under the medical benefit, since my husband’s retirement in 2010. We have our intake appointment this week!

    Makes me sick to my stomach, the stipulations TRICARE & our government imposes.

    We will continue the fight along with you~ also a warrior mom

  • Sheri

    We provided our victim impact statements for this case, as well, back in July 2010. Thank you for this article… it was the nudge I needed to contact the attorneys again which I just did. Hopefully, we can all stand together to bring change for our children!

  • Rick Eckert

    In regards to the statement in the article “But despite our win, Tricare has managed to put policies into place not just effectively getting around the order, but also possibly yanking care from previously covered Active Duty families.” This not a possibility but a fact. It has already happened. Children without a diagnosis of autism that were previously receiving ABA under ECHO are now no longer eligible for ABA at all.

    • anonymous

      It happened to my daughter. She had trisomy 21 and was greatly benefiting from ABA therapy, until this law went into effect and stripped her of all her ABA therapies. Disgusting.

  • Simona

    To be eligible for ABA under TRICARE, you must be diagnosed within the Autism spectrum disorder by one of these provider types:
    Your childs primary care doctor, or a specialized Autism spectrum disorder Physician, who is board certified or board-eligible in behavioral developmental pediatrics, such as neuro developmental pediatrics, pediatric neurology or child psychiatry or PhD- Clinical psychologist, working primarily with children.
    You can always contact an ECHO case manager in the region your TRICARE is thru. We followed these steps and have had no problems.

  • This is a sad, but unfortunately inevitable state of affairs. As any parent who has ever had to fight tooth and nail to win a due process, winning is one thing, collecting on the judgement is another. After watching this case unfold for years, and then hearing the outcome in favor of the plaintiffs, my first thought was, “it’s only a judgment, let’s see what comes next.” What Tricare is pulling now is not shocking, but is downright appalling. Hopefully, those of us in the military autistic community can make enough noise to those in higher places who will listen in order to make this travesty an issue. Frankly, this pisses me off and I intend to spread this far and wide. Please help me get this hypocrisy out to the masses. Write your representative, write your media and bring as much attention to this matter as possible. The needs of our our special needs community in the military needs the coverage of the games that Tricare is manipulating to all of our children’s detriment!

  • Katja

    The new benefit for retired families is now the benefit for all families, active duty and retired and is being limited by no longer including kids without an ASD diagnosis and kids under the age of 3. They also no longer authorize direct services by BCaBAs which drastically reduces the number of available therapists.

  • Abbey

    I work for a TRICARE contracter and I am so sorry for this struggle. I wish I had the ability to change things without an act of Congress! I am also a military spouse, and while I don’t have children yet, I can’t imagine what you’re going through to make sure your child is provided the best care possible. Just know that everyone I work with is in agreement and we truly wish we could help you more. Our hands are tied on this issue as well and we all hate it.

  • Jack McCarthy

    Pam and I know that you are not a quitter. That you and Ken will continue to fight Tricare. We will continue to pray and will be contacting our Congressmen and Senators on a regular basis in support of you and Zach.
    Jack and Pam McCarthy

  • MrsD

    As a mother, I sympathize with each and every one of you who are facing this terrible injustice. With the passion and dedication I see here I am certain you will fight this and win. However, I am disappointed that Spousebuzz allowed the paragraph “This is a political issue. President Obama … fought to block military children from receiving care.” to remain in this post. Spousebuzz has always maintained it is not political and has refrained from political comment. This blog post was not enhanced by this paragraph nor was this paragraph relevant to the rest of the article. Spousebuzz, please remain the politics-free zone I have always enjoyed!

    • Justalysn

      Yes, exactly!

    • Danny

      Agreed! You can’t blame one president for a policy that has been in place for years. Tricare has it’s own administration and governors.

    • Jodi

      It is a political issue though. The President has the authority to mandate this coverage for military children. When presented with this issue, instead of signing the mandate, the President sent it back to a deadlocked Congress. He could have ended the battle right then and there, but chose not to. He has stonewalled military families on this. Same with GW Bush. Whether or not this is allowed on the blog is debatable, but it should be mentioned that Obama had the opportunity to fix it, and he didn’t.

  • Hilary

    Thank you for your passionate and well written article. As someone who works in the special education system I interact with many many parents who share your struggles. It is very important to note that this issue of uncovered ABA services is not only a TRICARE issue. Most insurance will not cover 20-40 hours a week. If they do it is most likely for a short period of time and not for multiple years. There are other treatments that are also effective. I respectfully caution us all not to make this a TRICARE issue but rather see it as a broader healthcare insurance issue. It took many, and many would say too many and we have a ways to go, for public education to begin to adequately address the needs of children on the spectrum. It now seems the struggle has moved to healthcare insurance coverage. It is a much bigger issue than just DOD policies as the TRICARE is not alone in their maneuvers. Just like service members children, all parents make sacrifices for their employers and do what is asked and expected. In my opinion this is not just a military issue.

  • CharlieBravo

    President Obama is the Commander and Chief and believe he has the authority as does the SecDef to correct the policy to comply with the court order. I would think the administration would be all over this to show that military families (active and retired) will be given the care they espouse everyone in the country should have.

  • Megan

    While I know there are wonderful tutors out there, I agree with the BCBA only approach as a mom to two autistic boys. I have seen some really poorly trained and poorly supervised tutors in my boys time in therapy. Before the ruling, I came to insist my boys get their care from BCBAs directly. This reduced the amount of hours they could receive, but it was worth it for us. The difference in knowledge and approach is palpable. There will be more providers, because the need is there. It will take time for that void to be filled. EFMP will have to take into consideration, among other things, BCBA availability, upon PCS. At retirement, I suggest families consider availability of services as well. For the families that are no longer covered, FIGHT. Don’t stop. Believe me the squeaky wheel gets the grease. If your child may qualify for a dual diagnoses, get it. Labels can help. Write letters to Michelle Obama. I know from personal, and second hand information, that they get results. I’m not sure why, but I think she really cares.

  • Bruce Ellinwood

    Please start an email petition that we in the military community can sign and present to the Secretary of Defense, and our elected representatives, to correct this Tricare mistreatment.

    Lately, I’ve seen online petitions change the attitude of corporate and government administrators. There IS strength in numbers, and it can’t hurt to show how many supporters are on your side.

  • CyncyKaye

    As a Military Spouse and a Insurance Broker, I have gotten a very indepth prospective to how Insurance Carriers work, and where “Government ran Healthcare” does it very wrong. I’m glad I saw this article when I did…especially since President Obama went and said that he “fixed Autism coverage” in America last night. There is also an issue with therapy services for other areas. My sister’s daughter(airforce) was born with a retina infection causing blindness and scaring in that eye. Therapy could help improve the vision, but they have denied it as a not covered benefit on Prime. Disgusting. I have posted this article to a National Insurance Underwriters group that I am associated with. Maybe we can shed some additional light on this lovely loop hole they have created! Thank you for fighting the good fight for our children!

  • Sheree Lesch

    In response to the post on children of retirees: I am a retiree (21 years). My husband is a retiree (22 years). We have a son with Down Syndrome. I plain just got tired of fighting with Tricare to get ABA therapy for him. I finally gave up. If you haven’t retired yet, you may be unsympathetic. But the love for your child will not change when you retire, nor the desire to ensure he receives the best care. When Tricare tells you that as a retiree, your child doesn’t get ABA services but active duty kids do – it will make you VERY VERY angry.

    You and your husband committed the best years of your lives to the military. Retiree or active duty – our children should be treated the same. Your active duty / retiree status should not be the determining factor for the care they receive. One day, if your life’s path is such, you will become a retiree. Lets work together, retirees and active duty, not against each other.

    One more thing, yes, children of retirees now get ABA services – but its capped at two hours per week AND THAT’S ALL WE GET! Its ineffective and pitiful. Just so you know, its not all wine and roses for our kids either.

  • Rhino

    Tricare, tricare, tricare, shame, shame, shame….where wre you morals for the children of those who have served to protect you. And now you Tricare refuse to protect and aid their children. Do you really know whom suffers here?

  • Rhino

    P.S. Thank you Dawn! You are a Warrior. God speed to you and may your success slay this Dragon. Semper Fi

  • Keep up the good fight! Can we solve the EFMP bugaboos, too!?!

    Two Financial & Tax implications to be aware of for out-of-pocket therapies, schools, devices, not covered by Tricare:

    Under the PPACA (Obamacare), FSAs are capped at $2500. All out-of-pocket spending beyond that will not have the pre-tax benefit, but will come out of normal, taxed, take-home pay.

    Also, beginning 2016, under PPACA, the health care expenses you can write off on your tax return is raised to 10% of adjusted gross income. (Seniors see that rise in 2013.) Rate is currently 7.5% of AGI.

  • LWilson

    Tricare is horrible. They are taking back money on previously paid claims because my wife had “other insurance” This is created a paperwork burden for us. I’m considering a civil judgment against them for $20,000 for fraud waste and abuse. With the military going to United Health care, that doesn’t give me much hope for them either. Hope it works out for you. I am so done with the military after this.

    • H2O

      Perhaps you should follow the Federal regulations when it comes to reporting other health insurance.. then you would not have had such a burden, you know what a true burden is our federal budget.. get a grip and stop complaining

  • Mother warrior

    We are having a lot of problems with Tricare providing authorization for our autistic son. My understanding is that we are not alone. Tricare and DoD are trying to undermine this decision in any way they can. They gave us an auth, then took it away a few weeks later. They are trying to pull the wool over our heads and trying to avoid coverage of this service in any way they can.

    And, for those haters that are posting here, clearly, you haven’t lived with an autistic child, nor do you know anything about ABA therapy. Raising an autistic child, it can be difficult, at best, to do simple things with your family that most people take for granted. One of the primary focuses on ABA therapy is to do parent and caregiver training. Consistency is key with a special needs child and for this therapy to become effective. Those haters have probably never considered the fact that when their child turns 18, they will still have a lifetime of very close supervision and parenting ahead. We do! Please have some compassion and keep your negativity to yourself.

  • Melissa

    It is one thing to have tutors work directly with your child, I have always preferred a certified provider. Many companies require their BCBAs to provide the minimum required supervision for ABA tutors; however, it seems like everyone is leaving out the fact that BCaBAs were providing quality hands-on therapy to children, but now that the coverage has changed, Tricare no longer covers them…and they are certified! I feel retirees should be allowed coverage, but everyone else’s coverage should not be limited to offset it. There is a big pool of BCaBAs out there, and if Tricare does not cover them, there is the great possibility, that people who may have decided to get certified, may chose to just become a tutor. I think this will highly jeopardize the integrity of the field.

  • Tom

    Dawn don’t blame the POTUS, rather blame the DOD. They are the ones who are fighting the rising health cost and want more from retirees who where promised FREE medical care for life. I would also ask you have you looked into other government aid agencies; medicaide and medicare. I don’t know if they will provide any assistance, but all avenues should be explored. I sincerely wish good luck as I truly believe there is nothing more precious and/or important than our children.

  • Agnes

    Tricare is(poorly) managed by the very same people who hide behind their rank and don’t give a damn about their people in time of war and their families in general. Let alone retired personnel and their families. The ONLY thing these people care about is their own paycheck, their own bonuses, and their own careers. PERIOD. Your life or your kids’ life? They quite frankly could NOT care less. Therefore, the ONLY thing they deserve is to get investigated by congress like the VA is currently investigated.
    The best way to do that is to create a maximum of scandal, gather the maximum of proofs and contact the press. Look at what happened with the VA: The whole thing started when CNN broke the news of the hidden waiting list and of the vets dying while waiting. I doubt none of these dying veterans or their families contacted their representatives, so the congress who is now so “outraged” was more likely totally aware of what was going on.
    Now heads are rolling and this is good. If only the Feds could press criminal charges, it would be even better. Most of these people need to rot in jail. Tricare as the VA is full of these do-nothing abusers pencil pushers and a good cleaning is greatly needed.
    So how about contacting the journalist who broke the news about the VA ( Drew Griffin CNN)? When they will have to explain themselves, they will do what they have done all their career: Try to find excuses. They are so much in the “it’s-not-my-fault-it-is-yours” system that they don’t even see that nobody trust them anymore. The only thing they need is… THE BOOT!
    Tricare wheeling and dealings are a shame for America as is the VA.

  • Jennifer

    We are having a battle with tricare as well concerning our special needs son with CP. Tricare is no longer paying for therapy becAuse we are choosing to homeschool him. Tricare will only pay if we show an IEP from a public school. They will pay for my for speech therapy for my other son even when he is homeschooled. Not only will tricare not pay for therapy in th future, but they went back and refused to pay what they had already allowed. My husband just got back from a year long deployment in Afghanistan 2 weeks ago. How can the Government tell us how to care for and educate our children ???