Emergency Preliminary Injunction Sought Against the Department of Defense By Military Families Over DoD's Refusal to Pay for Applied Behavior Analysis Therapy for Children with Autism

TROY, Mich., Sept. 2 /PRNewswire/ -- Military families having children with autism filed a Motion for Preliminary Injunction today against the Department of Defense, alleging that the DoD and its health benefits division, TRICARE, have wrongfully refused to provide health benefits coverage for applied behavior analysis therapy (ABA) . The Motion alleges that children with autism will sustain irreparable injury for each day that goes by without receiving ABA therapy to which they are entitled under the military health benefits statute. The Motion was filed in the case is Berge v. United States of America, et al, No. 10-cv-00373-RBW (DC), and it was assigned to Judge Reggie B. Walton of the federal district court.

ABA therapy is known to be extremely effective in treating children with autism if given at an early stage of development.  It is scientifically validated and includes positive reinforcements and individual goal  setting,  to achieve dramatic behavior modification. ABA therapy allows children with autism the opportunity to reach maximum potential and the hope of becoming independent in their adult lives. With virtual unanimity, physicians, psychiatrists, psychologists, social workers and mental health professionals regard ABA therapy to be the most effective treatment for autism. Yet, the DoD refuses to afford this therapy to autistic children of military families.

The lawsuit contends that the military health benefits division, TRICARE, at the direction of the DoD, incorrectly characterizes ABA therapy as "special education" and thereby improperly excludes ABA therapy from the health care available to members of the military. The families refute this position and demonstrate in their Complaint that many prestigious individuals and organizations, including the United States Army, the Army and Marine Corps Autism Task Force, the Executive Director of the National Autism Center, the Acting Surgeon General of the United States Army, and United States Air Force Major Ella B. Kundu, Diplomate of the American Board of Psychiatry and Neurology, agree that ABA therapy is not "special education."

The Department of Defense has recently requested that all action on the case be stayed and that the matter be remanded, or sent back, so that the DoD can study the issue further.  The families have vigorously opposed the request for a stay or a remand, contending that time is of the essence for the approximately 20,000 military children with autism.  Counsel for the families assert that the DoD's policy of denying such care to autistic children of military families is illegal and should be invalidated without delay.

Former Michigan State Senator, David Honigman, co-counsel for the families, stated: "There is only a small window of opportunity for these children to receive this therapy and obtain maximum benefit from it.  The studies show that this therapy yields the most dramatic improvement in abilities if administered at early ages.  The DoD's denial of coverage based on the assertion that ABA therapy is 'special education' is contrary to the plain meaning of the health benefits statute and is incorrect as a matter of law."

Gerard Mantese, co-counsel for the families, stated: "We have filed this Emergency Motion because the medical and scientific experts establish that these children will be harmed irreparably if they do not receive this therapy at a young age.  Unless the DoD starts living up to its obligations under the law, these children will never achieve the functioning they could otherwise achieve.  These military families give us so much to be thankful for in this country - our freedom and our safety.  Our military should not also be asked to sacrifice proper health care for their children in order to serve their country."

SOURCE Mantese Honigman Rossman and Williamson, P.C.

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