879 F. Supp. 2d 98
D.D.C.2012Background
- Kenneth Berge et al. sue the US, DoD, TMA, and Secretary Gates under the APA challenging TRICARE Basic Program denial of ABA therapy for autism.
- Plaintiffs seek coverage for ABA therapy under the Basic Program, alleging the denial is arbitrary, capricious, and unlawful.
- TRICARE Basic Program excludes non-medically/psychologically necessary treatments; ECHO is a separate, limited extension for active-duty dependents.
- Regulations define medical care and the ‘reliably evidenced’ standard used to deem therapies proven or unproven.
- Z.B., a dependent with autism, was denied ABA services under Basic Program but later ABA coverage was granted under ECHO.
- The court ultimately grants the plaintiffs’ summary judgment, finds DoD’s Basic-Program denial arbitrary and capricious, and remands with injunction to provide ABA coverage under the Basic Program.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Chevron step one: is statute ambiguous? | Berge argues statute is unambiguous; ABA must be covered. | DoD contends statute is ambiguous; agency may interpret ‘not medically or psychologically necessary.’ | Ambiguity found; Chevron step one satisfied for further review |
| Chevron step two: is the agency’s interpretation reasonable? | Agency failed to ground its decision in regulation and relied on unreliable evidence. | Agency claims a rational connection to the statute and definitions; deference due if reasonable. | Agency’s explanation not satisfactory; decision arbitrary and capricious |
| Consistency between Basic Program and ECHO coverage? | Coverage discrepancies undermine statutory purpose and create inconsistency. | ECHO may cover ABA while Basic does not, due to discretion under 1079(e)(7). | Inconsistent treatment invalid; remand to extend ABA coverage under Basic Program |
| Did agency ignore its own regulations in labeling ABA unproven? | Regulations define ‘medical’ and ‘medically necessary’ without tying to reliable-evidence standard. | Agency properly applied reliable-evidence framework to prove/unprove treatment. | Agency failed to follow its own regulations; arbitrary and capricious |
Key Cases Cited
- Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (arbitrary and capricious review requires rational connection to facts)
- Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (U.S. 1984) (two-step framework for agency interpretations)
- National Mining Ass’n v. Kempthorne, 512 F.3d 702 (D.C. Cir. 2008) (ambiguity in statutory terms supports agency filling gaps)
- Barrington v. Surface Transp. Bd., 636 F.3d 650 (D.C. Cir. 2011) (Chevron step two requires a rational connection and reasoned explanation)
- Am. Bankers Ass’n v. Nat’l Credit Union Admin., 271 F.3d 262 (D.C. Cir. 2001) (statutory ambiguity and agency deference guidance)
- Barnett v. Weinberger, 818 F.2d 965 (D.C. Cir. 1987) (construe military-benefits statutes in favor of beneficiaries)
- Sea-Land Serv., Inc. v. Dep’t of Transp., 137 F.3d 640 (D.C. Cir. 1998) (implicit delegation of interpretive authority required for Chevron deference)
- Smith v. Office of Civ. Health & Med. Program of Uniformed Servs., 97 F.3d 950 (7th Cir. 1996) (claims of unproven therapy; extensive medical controversy context)