Class Action Tricare Case

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CIVIL DIVISION

KENNETH BERGE and DAWN BERGE, on behalf of themselves and their minor child Z.B., as individuals and on behalf of all others similarly situated, Plaintiffs,

Case No. 10-cv-00373-RBW Hon. Reggie B. Walton

v. UNITED STATES OF AMERICA, U.S. DEPARTMENT OF DEFENSE, TRICARE MANAGEMENT ACTIVITY, and ROBERT M. GATES, United States Secretary of Defense, jointly and severally, Defendants.

___________________________________________________________________________

CITATION OF SUPPLEMENTAL AUTHORITY

In support of its motion for summary judgment, Plaintiffs advise that on March 26, 2012,

a federal District Court in Florida issued a permanent injunction against the State of Florida

setting aside its Medicaid policy which, like Defendants' policy that we challenge here,

designated ABA therapy as an “experimental” autism treatment and refused to cover it. (K.G., et

al. v. Dudek, case no. 11-20684-civ (S.D. Fla. 2012)). A transcript of the preliminary opinion

and order that the Court rendered orally is attached as Exhibit A. The written opinion and order

(Amended Permanent Injunction Order) that the Court subsequently issued is attached as Exhibit

B .

The Court, in a rare display of judicial emotion, states that “[t]his case, if not the most

important, is one of the most important cases that I have ever heard," and it "cries out for

immediate ruling." (Exhibit A, p. 188). Holding that "it is imperative that autistic children in

Case 1:10-cv-00373-RBW Document 116 Filed 04/06/12 Page 1 of 6

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Florida receive ABA immediately to prevent irreversible harm to these children's health and

development,” the Court orders the State of Florida to pay for ABA treatment. (Exhibit B, p. 25).

The Court details the irreparable harm inevitably wrought by delaying ABA treatment of

children with autism:

"If these children do not receive ABA in the primary years of development up to age 6 and then to 12 years of age, the children may be left with irreversible language and behavioral impairments. As Dr. Lopez Alberola testified:

‘There are certain windows of opportunity in normal development that if these windows are missed, they will be forever gone, at which point no matter how much therapy the child is exposed to, the damage has already been done and it is potentially irreparable....specifically, the child may be left language impaired, the child may be left with significant behavioral impairment, non-functioning, non-integrated member of society....[I]f the child is not speaking by 7 years of age, the chances of the child ever developing language pretty much after 7 years of age is next to none.’

Dr. Mulick expressed similar concerns, testifying:

‘[If] certain kinds of learning establishing the neural network… don't occur early in life, there simply not going [to] occur or not going to occur easily. For example, no one has learned to talk a human language or communicate with the human language past the age of 12.’

Dr. Vasconcellos testified that starting ABA at 4 years old is ‘late.’’’ (Exhibit B, p. 24-25).

The military family plaintiffs here have presented to this Court much of the same

evidence considered by the Florida District Court which led that court to conclude that ABA is

broadly accepted as the most effective and reliably proven treatment for autism and is not

"experimental." After considering much of the same evidence offered by the military families

here, the Florida District Court concludes that:

"The ‘reliable evidence,’ as defined by Florida law, conclusively shows that ABA is not ‘experimental.‘ …[T]here exists in the medical and scientific literature a plethora of


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peer-reviewed meta-analyses, studies, and articles that clearly establish ABA is an effective and significant treatment to prevent disability and restore developmental skills to children with autism." (Exhibit B, p. 23).

On the one hand, the Dudek court concludes that the studies, meta-analyses and other

evidence offered by the plaintiff Medicaid beneficiaries with autism, which is the same evidence

offered by the plaintiff military dependents with autism here to show that ABA is widely

regarded and reliably proven to be the most effective treatment for autism and is not

experimental, are reliable, peer-reviewed publications that constitute the authoritative medical

and scientific literature. On the other hand, the Dudek court concludes that "almost all of the

materials relied upon by" the State of Florida, which includes most of the materials offered by

TRICARE and the Department of Defense here to support their claim that ABA is experimental,

"are not reliable evidence." (Exhibit B, p. 19).

"The TEC Report, Hayes Report, and the AHRQ Report are not peer-reviewed and have not been published in the authoritative medical and scientific literature." (Exhibit B, p. 19).

DoD and TRICARE rely on the very same Hayes Report and TEC Report here that is

rejected as unreliable and not part of the authoritative medical and scientific literature by the

federal court in Dudek.

The Dudek defendants make all of the same arguments as TRICARE and the Department

of Defense here, all of which the Florida District Court rejects. Instead, the Florida District Court

reaches the same conclusion that we urge upon this court:

"Dr. Vasconcellos, Dr. Bailey, and Dr. Mulick all testified that ABA is the standard means of treatment for autism and ASD. Dr. Vasconcellos testified that she prescribes ABA to all of her autistic patients and believes it would be medical malpractice not to prescribe ABA for a child with autism. Dr. Bailey testified that ‘we know ABA works. It's been well established. It's accepted in the medical community.’ Furthermore, Dr. Mulick testified that the consensus in the medical community is that ABA has been the standard


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means of treatment for children with autism and ASD since the 1990s, evidenced by consensus statements from the following sources: Centers for Medicare and Medicaid Services, United States Surgeon General Schachter, the Center for Disease Control and Prevention, the National Institute for Child Health and Human Development, the National Institute for Neurological Disorders and Stroke, The National Institute for Mental Health, the American Society of Child and Adolescent Psychiatry, the American Academy of Pediatrics, and the American Psychological Association." (Exhibit B, p. 21-22).

In conclusion, we urge this Court to immediately consider the pending cross-motions for

summary judgment. We believe that you will conclude, as did the Florida District Court, that

ABA is medically necessary and not experimental under federal law. (See Exhibit B, p. 11).

Please act before more children are lost.

Respectfully submitted,

s/ David M. Honigman David M. Honigman (MI - P33146)

[email protected] Gerard V. Mantese (MI - P34424) [email protected] Brendan H. Frey (MI - P70893) [email protected] Brian M. Saxe (MI - P70046) [email protected] Mantese Honigman Rossman and Williamson, P.C. Attorneys for Plaintiffs 1361 E. Big Beaver Road Troy, MI 48083 (248) 457-9200


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John J. Conway (MI - P56659) [email protected] John J. Conway, PC Co-counsel for Plaintiffs 26622 Woodward Ave., Ste. 225 Royal Oak, MI 48067

(313) 961-6525

Bruce J. Klores (DC - 358548) [email protected] Bruce J. Klores & Assoc. P.C. Attorneys for Plaintiffs 1735 20th Street NW Washington, DC 20009 Tel (202) 628-8100 Fax (202) 628-1240

Dated: April 6, 2012


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CERTIFICATE OF SERVICE

I hereby certify that I served the Citation of Supplemental Authority on the following

defendants in this matter electronically via CM/ECF, this 6th day of April 2012:

Tony West, Assistant Attorney General Ronald C. Machen, Jr., U.S. Attorney for D.C. Vincent M. Garvey, Deputy Director, Federal Programs Branch Adam Kirschner, Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 50 Massachusetts Avenue, N.W. Room 7126 Washington, D.C. 20001 _s/David Honigman__________ David Honigman


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