Kaitlyn Samuels V Department of Defense

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KAITLYN SAMUELS, and
CAPTAIN MARK SAMUELS, USNR, and
JENNIFER SAMUELS, as conservators and
guardians of KAITLYN SAMUELS,

Plaintiffs,
v.
U.S. DEPARTMENT OF DEFENSE
1400 Defense Pentagon
Washington, DC 20301,

DEFENSE HEALTH AGENCY
7700 Arlington Boulevard, Suite 5101
Falls Church, VA 22042

and

CHUCK HAGEL
United States Secretary of Defense
1000 Defense Pentagon, Room 3E880
Washington, DC 20301,
Defendants.

Case No. __________
COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
Plaintiffs Kaitlyn Samuels, and Captain Mark Samuels and Jennifer Samuels, as
Kaitlyns conservators and guardians, file this Complaint for Injunctive and Declaratory Relief
against Defendants the Defense Health Agency
1
(DHA) and Chuck Hagel, United States
Secretary of Defense, in his official capacity, alleging as follows:

1
On October 1, 2013, the Department of Defense established the Defense Health Agency (DHA) to
manage the activities of the Military Health System. These activities include those previously managed by
TRICARE Management Activity (TMA), which was disestablished on the same date. Because TMA was
administering the Military Health System when Kaitlyns benefits were denied, the Complaint will refer to TMA
rather than DHA.
Case 3:14-cv-02948-K Document 1 Filed 08/15/14 Page 1 of 16 PageID 1
2

NATURE OF THE ACTION
1. Mark Samuels, United States Navy Reserve, and Jennifer Samuels, on behalf of
their daughter Kaitlyn Samuels, bring this action under the Administrative Procedure Act
(APA), 5 U.S.C. 702 (2006), challenging TRICARE Management Activitys (TMA) denial
of cost-sharing for necessary, life-saving physical therapy for Kaitlyn. Plaintiffs assert that
TMAs decision was arbitrary, capricious and unsupported by any substantial evidence. Plaintiffs
request that this Court enjoin Defendants from denying coverage for Kaitlyns physical therapy
and order Defendants to provide reimbursement for past physical therapy sessions, which were
wrongfully denied.
2. The TRICARE Basic Program is a supplemental program to the Uniformed
Services direct medical care system. Beneficiaries receive coverage for necessary medical
services and treatment strategies, including physical therapy.
2

3. Kaitlyn is a 17-year-old girl and TRICARE beneficiary who suffers from severe
mental and physical impairments caused by agenesis of her corpus callosum. Due to Kaitlyns
brain disorders, her muscles do not function properly. She also suffers from neuromuscular
scoliosis, a medical condition that causes her spine to curve from side to side. Jennifer Samuels
has three simple wishes for her daughter, Kaitlyn: that she learn to say a few words, take a few
steps unassisted, and curl the food from her plate onto her spoon.

2
An Authorized Individual Plan of Care is the document that states a TMA patients health deficits that
need treating, as well as the physical therapists doctor-prescribed, Current Procedural Terminology (CPT) coded
treatment strategy. Kaitlyns treatment strategy calls for physical therapy. The two CPT codes Kaitlyns physical
therapist uses for her treatment are billed under 97530 Therapeutic Activities whereby the health care provider
uses dynamic therapeutic activities designed to achieve improved functional performance (e.g., lifting, pulling,
bending), and 97110 Therapeutic Exercises whereby the therapist and patient use a tool to perform therapeutic
exercises to one or more body areas to develop strength, endurance, and flexibility. A Plan of Care determines
treatment strategy, not the tools the therapist uses when executing the treatment strategy; indeed, there are no codes
for tools.
3

4. If untreated, Kaitlyns disorder will severely worsen the curvature of her spine,
which will cause compression of her ribs into her internal organs and crush her organs. Kaitlyns
body will slowly shut down and she will die.
5. Participation in effective physical therapy slows down and reverses negative
effects of the curvature in Kaitlyns spine. Currently, Kaitlyns spine is straightening, and the
surrounding muscles are growing stronger, because of the uniquely tailored physical therapy plan
implemented by her physical therapist. Without specially tailored physical therapy, Kaitlyns
only option would be an expensive and extremely risky surgery, which would involve fusing her
backbone from the neck to the lumbar region. As a result of this surgery, Kaitlyn would lose the
progress shes made to-date, as well as what freedom she has to move freely: she would lose all
flexibility from her torso and would require nonstop monitoring. Simple tasks such as assisted
walking, unassisted sitting, and sleeping comfortably would be impossible. This life-threatening
and costly surgery may need to be repeated throughout her lifetime and will likely result in
constant muscle spasms and pain. Under Kaitlyns physical therapy regimen this surgery will not
be necessary.
6. Kaitlyns doctors first prescribed physical therapy to Kaitlyn when she was an
infant under one-year old. Since then, she and her parents have worked with a licensed physical
therapist to treat and manage her condition through doctor-prescribed physical therapy. In her
early childhood, Kaitlyn received physical therapy in a clinical setting using tools such as barrels
and physioballs to engage her in various therapeutic activities. Eventually these tools proved
ineffective because Kaitlynwhose intellectual capacity is in the high infant-toddler-preschool
rangelost interest and would no longer participate. Like many special-needs patients receiving
4

physical therapy, Kaitlyn needed a regimen specifically tailored to meet her unique needs and to
accomplish the goals of her physical therapy.
7. Kaitlyns physical therapist performs therapy at a local wounded warriors
treatment center near Kaitlyns fathers military base, where horses are readily and often
available to be used as physical therapy tools for children like Kaitlyn and other physical therapy
patients in the military such as wounded warriors. When physical therapy bolsters and balls
proved ineffective for Kaitlyn, her physical therapist decided to incorporate therapeutic
movements that could be performed on horseback. In 2006, under the supervision and direction
of her physical therapist, Kaitlyn was placed on a horse while volunteers secured her ankles and
knees and led the horse in a circle. The horses movements successfully engaged Kaitlyns back
and trunk muscles, and she remained engaged in the activity for the entire 45-minute weekly
session, a stark contrast to her lack of engagement with the barrels and physioballs. The horse is
the only physical therapy tool which has proven effective for treating Kaitlyns scoliosis and the
sessions were covered as any other physical therapy session by TRICARE until 2010.
8. In June of 2010, TMA informed Captain and Jennifer Samuels that Kaitlyns
physical therapy claims from April 23, 2009 through March 31, 2010, were being retroactively
denied because the service provided was not a covered benefit under TMA policy. TMA
contended that Kaitlyn was not receiving physical therapy, but was instead receiving an
unproven treatment known as hippotherapy.
9. The Samuelss appealed TMAs decision, and after a series of appeals, an
administrative law judge conducted a full evidentiary hearing before concluding that Kaitlyns
physical therapy was a covered.
3
The judge determined that the horse was simply a tool for

3
See Appendix B.
5

physical therapy and rejected TMAs position that using a horse for physical therapy transformed
the activity into an uncovered modality of treatment.
4

10. Disregarding the ALJs recommendation and analysis of the law and regulations,
a TRICARE administrator who is neither a doctor nor a lawyer issued Kaitlyn a Final Decision
on October 24, 2012, declaring that TMA would not cover her treatment. TMA denied Kaitlyns
claims for benefits on the ground that her therapy was hippotherapy and not physical therapy,
and because hippotherapy was not a proven and covered treatment, her benefits would cease.
5

TMA denied further treatment and demanded back payment for previously covered physical
therapy sessions.
11. TMAs decision was devoid of reason and unsupported by any substantial
evidence or basis in the law. TMA provided no explanation of its decision that physical therapy
utilizing a horse, in place of a therapy ball, barrel, wedge or other tool, is anything but physical
therapy. Nothing in TMA regulations provides that the government may deny physical therapy
based on the physical therapy tool selected by the therapist. It is only the treatment strategy
itselfphysical therapythat may be denied. Consequently, TMAs decision was arbitrary and
capricious and was plainly insufficient under APA standards.
JURISDICTION AND VENUE
12. This Court has jurisdiction under 28 U.S.C. 1331 as this action arises under 10
U.S.C. 1079 (2006) and the APA, 5 U.S.C. 701 et seq., which grants judicial review of final
agency action.

4
The word modality is not to be confused with a treatment strategy for the purposes of TMA benefits.
TMA defines a modality as, Any physical agent applied to produce therapeutic changes to biologic tissues; includes
but not limited to thermal, acoustic, light, mechanical, or electric energy. Examples include hot/cold packs,
ultrasound, electrical stimulation. These are billed for in code in addition to direct treatment by the physical
therapist. The ALJ recognized that Kaitlyn does not receive modalities in her physical therapy, [Kaitlyns] use of
the horse is not a modality, but a physical therapy tool.
5
See Appendix C.
6

13. Venue is proper in this Court under 28 U.S.C. 1391(e) as this is an action
against an agency of the United States, Plaintiffs reside in this judicial district, and a substantial
part of the events and omissions giving rise to this action occurred, or a substantial part of
property that is the subject of the action is situated, in this judicial district.
14. This Court may grant declaratory relief under 28 U.S.C. 2201 and injunctive
relief under 28 U.S.C. 2202, and shall hold unlawful and set aside agency actions, findings,
and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; . . . (C) in excess of statutory jurisdiction, authority, or limitations, or short
of statutory right, [or] (D) without observance of procedure required by law. 5 U.S.C.
706(2)(A), (C), and (D).
PARTIES
Plaintiffs
15. Plaintiffs are Kaitlyn Samuelsa 17-year-old girl who suffers from severe mental
and physical impairmentsand her parents and conservators Captain Mark Samuels, USNR, and
Jennifer Samuels. Kaitlyn is a TRICARE beneficiary. The Samuels family is located in Keller,
Texas.
Defendants
16. The United States Department of Defense (DOD), located at 1400 Defense
Pentagon, Washington, DC 20301, is an agency of the United States government.
17. Defense Health Agency (DHA), located at 7700 Arlington Boulevard, Suite
5101, Falls Church, Virginia 22042, is responsible for managing the Department of Defenses
TRICARE health care system for active duty and retired uniformed service members and their
families.
7

18. Chuck Hagel currently serves as the United States Secretary of Defense and is
located at 1000 Defense Pentagon, Room 3E880, Washington, DC 20301. The Secretary of
Defense has delegated authority to the Assistant Secretary of Defense for Health Affairs to
provide policy guidance, management control, and coordination as required for all Department of
Defense health and medical resources and functional areas, including health benefit programs.
Nonetheless, Secretary Hagel maintains ultimate authority, direction and control over the
Department of Defense, including the TRICARE health benefits program.
STATUTORY AND REGULATORY PROVISIONS SUPPORT COVERAGE
19. The TRICARE Basic Program is a supplemental program to the Uniformed
Services direct medical care system. Although it is not an insurance program, the Basic Program
is similar to private insurance programs and is designed to provide financial assistance to
TRICARE beneficiaries for certain prescribed care from civilian sources. 32 C.F.R. 199.4(a).
The stated purpose of the program is to create and maintain high morale in the uniformed
services by providing an improved and uniform program of medical and dental care for members
and certain former members of those services, and for their dependents. 10 U.S.C. 1071.
Subject to certain exclusions published in statutes, Department of Defense regulations or
TRICARE policy, the Basic Program requires TRICARE to pay for all medically necessary and
appropriate services and supplies required in the diagnosis and treatment of illness or injury. 32
C.F.R. 199.4(a)(1).
20. Medical necessity is defined in 32 C.F.R. 199.2(b) as [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 or that are reasonable and adequate
8

for well-baby care. The determination of whether the services are reasonable and necessary
should be made in concert with a physician, who has determined that the services at issue are
reasonable and necessary.
21. Appropriate medical care is defined in 32 C.F.R. 199.2(b) as:
(i) Services performed in connection with the diagnosis or treatment of disease or
injury, pregnancy, mental disorder, or well-baby care which are in keeping with
the generally accepted norms for medical practice in the United States;

(ii) The authorized individual professional provider rendering the medical care is
qualified to perform such medical services by reason of his or her training and
education and is licensed or certified by the state where the service is rendered or
appropriate national organization or otherwise meets CHAMPUS standards; and

(iii) The services are furnished economically. For purposes of this part,
"economically" means that the services are furnished in the least expensive level
of care or medical environment adequate to provide the required medical care
regardless of whether or not that level of care is covered by CHAMPUS.

22. The Tricare Policy Manual states that the Department of Defense may provide
any rehabilitative therapy to improve, restore, or maintain function, or to minimize or prevent
deterioration of function, of a patient when prescribed by a physician. Tricare Policy Manual
6010.54-M, August 1, 2002, Chapter 7, Section 18.1, Rehabilitation. The Policy Manual also
provides that Physical therapy to improve, restore, or maintain functions, or to minimize or
prevent deterioration of function of a patient when prescribed by a physician is covered in
accordance with the rehabilitative therapy provisions found in Chapter 7, Section 18.1. Tricare
Policy Manual 6010.54-M, August 1, 2002, Chapter 7, Section 18.2, Physical Medicine/Therapy.
23. TMA does not have authority to contravene these published Department of
Defense regulations or TRICARE policies.
9

STATEMENT OF FACTS
KAITLYNS PHYSICAL THERAPY
24. Kaitlyn Samuels is a 17-year-old girl who from birth has suffered from severe
mental and physical impairments. Because her father served in, and has since retired from, the
Navy, Kaitlyn is a beneficiary of TRICARE and entitled by law to its medical benefits. Kaitlyns
impairments cause seizures, feeding problems and difficulties sitting, standing, and walking.
Mental-level tests place her intellectual capacity in the high infant-toddler-preschool range.
25. Because of Kaitlyns brain disorders, her muscles do not function properly. More
specifically, she suffers from neuromuscular scoliosis, a medical condition that causes her spine
to curve from side to side. If untreated, the disorder will cause Kaitlyns ribs to compress into her
internal organs until she dies. Participation in physical therapy slows, and even reverses, some of
the damage caused by Kaitlyns medical condition by straightening her spine and strengthening
the muscles around it. As Kaitlyn gains truncal control, strength and length in her trunk, and
flexibility through effective physical therapy, the likelihood of her scoliosis becoming life-
threatening is greatly decreased.
26. Kaitlyns doctor prescribes physical therapy and, in accordance with TMA
standards, Kaitlyn and her parents work with a licensed physical therapist to treat and manage
her condition. Physical therapy in a clinical setting often uses tools such as barrels and therapy
balls to increase the patients strength, flexibility, and muscle control. However, these tools have
proven ineffective for treating Kaitlyn as she quickly loses interest and refuses to participate.
Without effective methods of treatment, Kaitlyns muscles will continue to deteriorate, which
will cause the curve in her spine to become more severe until it reaches fatal levels.
10

27. Kaitlyns physical therapist uses horses as a physical therapy tool because
effective therapeutic movements can be performed while a patient is on horseback. In 2006,
Kaitlyns physical therapist placed her on a horse while volunteers secured her legs and led the
horse in a circle. Instead of sitting on a ball or bench during the therapy session, Kaitlyn sits on a
horses back. Her physical therapy goals include increasing flexibility of the joints, normalizing
muscle tone, improving coordination of movements, improving symmetry and sensory-motor
integration, helping with righting and equilibrium reactions, maintaining strength and flexibility
in her hips, enhancing body awareness, and strengthening muscles.
28. The horse serves as a dynamic surface; its movements engaged Kaitlyns back
and trunk muscles and allowed her to remain engaged for the entire 45-minute therapy session
twice per week. The horses body heat serves to loosen her tight muscles and limbs, allowing her
to stretch more effectively than when using a cold, static tool.
29. Physical therapy activities include riding the horse backwards to improve balance
and strengthen core muscles, having Kaitlyn lift herself from a horizontal position on the horses
back with her legs remaining static, and other strength building activities that would be
impossible for Kaitlyn to perform on a static tool such as a ball or a bench. The physical
therapists reason for using the horse as a tool is simple: the horse is the only tool that works for
Kaitlyn.
30. The physical therapy Kaitlyn receives on the horse at her parents expense is
based on the same principles and has the same objective as physical therapy using any other
toolstretching and strengthening her muscles. The difference with the horse is that Kaitlyn is
engaged and reaps the benefits provided by physical therapy for someone with her impairments.
11

31. Kaitlyns physical therapist is trained in physical therapy and is a licensed
physical therapist. She does not become a hippotherapist simply by using a horse as a tool for a
unique patient, no more than she becomes a physioball therapist when using a physioball as a
tool. On the occasion that Kaitlyns physical therapist has received a prescription for
hippotherapy, she has returned it to the physician because she is a physical therapist.
32. Kaitlyns physical therapist utilizes a horse because it is the only physical therapy
tool proved effective for treating Kaitlyns scoliosis. TRICARE covered these physical therapy
sessions from 2006 until 2009, and Kaitlyns physical therapist continues to utilize a horse for
Kaitlyns therapy.
ALJ FINDS THAT TMA MISTAKES PHYSICAL THERAPY FOR HIPPOTHERAPY
33. Around June 2010, TMA informed Captain and Jennifer Samuels that Kaitlyns
physical therapy claims from April 23, 2009, through March 31, 2010, were denied because the
service was not a covered benefit under TMA policy. TMAs position was that Kaitlyn was not
receiving physical therapy, but was instead receiving an unproven treatment known as
hippotherapy.
34. Often used an as umbrella term, the term hippotherapy is a misnomer, describing
various therapy treatments, such as psychotherapy using a horse.
6

35. When TMA denied the care based on this reason, the family and her doctors
believed this was a mistake that would be rectified once TMA learned that Kaitlyn was in fact
receiving physical therapy using a horse as a tool.

6
During the ALJ hearing, Kaitlyn presented evidence from the American Physical Therapy Association
acknowledging confusion in the misapplication of the term hippotherapy in the physical therapy context and
providing clarification of these terms to avoid confusion. See Appendix A. In its Final Decision, TMA persists in
this misnomer, stating that hippotherapy is a form of exercise or therapeutic horseback riding. As the ALJ found,
Kaitlyn does not us a horse for mere exercise or therapeutic riding, which is a legally operative term inapplicable to
the physical therapy Kaitlyn receives. See Appendix C.
12

36. The Samuelss appealed TMAs decision to an administrative law judge who
conducted a full evidentiary hearing.
37. On February 10, 2012, approximately eighteen months after TMA first denied
Kaitlyn cost-sharing for her physical therapy and after various levels of administrative appeals,
TMA conducted a full evidentiary hearing on Kaitlyns case. Kaitlyns family hired an attorney
who presented evidence and offered witnesses. TMA had an opportunity to cross-examine
Kaitlyns witnesses and proffer its own evidence and witnesses. Both sides had an opportunity
for opening and closing statements. Jennifer Samuels testified that Kaitlyns condition improved
dramatically when using a horse as a tool in physical therapy. Conversely, her condition
deteriorated during the months after TMAs cost-sharing denial before Kaitlyns family resumed
treatment at their own expense.
38. Kaitlyns doctor, who proscribed the physical therapy, testified that the horse is
used as a tool in physical therapy, not simply for exercise or hippotherapy. Kaitlyns physical
therapist testified that the medical coding she uses is coded to physical therapy. Kaitlyns
physical therapist also noted that after TMAs initial denial of treatment, during the lapse in
which Kaitlyn went without physical therapy, her spine curved significantly and rapidly from 31
degrees to 40 degrees, and that after therapy balls and benches proved useless, the family
resumed using a horse as a tool and began paying out of pocket for the sessions.
39. There is no added cost to the government to utilize a horse as a physical therapy
tool as opposed to any other physical therapy tool. Kaitlyns physical therapist also testified, and
the ALJ acknowledges in his decision, that the cost of using a horse is less expensive to the
government than using a ball or bench.
13

40. After listening to both parties present their evidence, the judge concluded that
Kaitlyns therapy is physical therapy and as such is a covered benefit despite whether a horse
was used as a tool by the physical therapist. The judge rejected TMAs conflation of the term
hippotherapy, which would preclude using a horse as a tool in physical therapy, and
determined that Kaitlyns physical therapy utilizing a horse is covered by the regulations.
TMA REFUSES COVERAGE DESPITE ALJS FINDING
41. Despite the ALJs findings, the TMA Director issued a Final Decision dated
October 24, 2012, to the Samuels family declaring that Kaitlyns treatment is hippotherapy and
not physical therapy, and because hippotherapy is not an approved treatment strategy, it was
denying Kaitlyns claims for benefits.
42. TMAs decision is devoid of reason and is unsupported by substantial evidence.
TMA provides no legal or factual basis for its decision that physical therapy that utilizes a horse
instead of a therapy ball, barrel, wedge or other tool is anything but physical therapy. TMA cites
no source for its decision to deny care based on the tool selected because nothing in TMAs
regulation permits the government to deny care based on which tool a doctor or physical
therapist chooses. In its denial letter, TMA insists that Kaitlyn is not using the horse for physical
therapy, despite the evidence furnished at the prior hearing and the ALJs finding to the contrary.
Consequently, TMAs decision is arbitrary and capricious and plainly insufficient under the
requirements of the APA.
CLAIM FOR RELIEF
COUNT ONE: Violation of 5 U.S.C. Section 706(2)(A)
TMAs ruling declaring physical therapy to be unproven and uncovered hippotherapy is
arbitrary, capricious, and an abuse of discretion
43. Plaintiffs incorporate by reference the allegations of the preceding paragraphs.
14

44. A reviewing court shall hold unlawful and set aside agency action, findings, and
conclusions found to be arbitrary, capricious, and an abuse of discretion, or otherwise not in
accordance with law. 5 U.S.C. 706(a)(A).
45. The APA requires an agency to examine the relevant data and to articulate a
reasoned explanation for its action, which includes at a minimum a rational connection between
the facts found and the course of action taken.
46. In its Final Decision, TMA focuses almost entirely on the merits of hippotherapy
as a standalone treatment, separate from physical therapy. Notably, TMA never rebuts the
position shared by the Samuels family and the administrative law judge that Kaitlyn receives
physical therapy that utilizes a horse. TMA simply declares that Kaitlyns treatment is not
physical therapy and denies her benefits.
47. TMA fails to examine the evidence and articulate a satisfactory explanation for its
decision. The explanation it offers is conclusory, unsupported, and manifestly insufficient.
48. TMAs decision is arbitrary, capricious, an abuse of discretion, and otherwise not
in accordance with law. Plaintiff is therefore entitled to relief under 5 U.S.C. 702 and
706(2)(A).
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully requests this Court order a speedy hearing of a declaratory
judgment action pursuant to Fed. R. Civ. P. 57, enter judgment in its favor, and:
1. Declare that TMAs Final Decision is unlawful and void;
2. Vacate and set aside TMAs Final Decision;
3. Order TMA to pay its share of the costs, past, present, and future, of all physician-
prescribed physical therapy that Kaitlyn has received since TMA first unlawfully denied her
benefits;
15

4. Permanently enjoin and restrain TMA from denying Kaitlyn and her parents
benefits for her physician-prescribed physical therapy;
5. Award Plaintiffs their costs of litigation, including reasonable attorneys fees,
pursuant to 28 U.S.C. 2412; and
6. Grant Plaintiff such other relief as the Court deems just and proper.


Dated: August 15, 2014 Respectfully submitted,

/s/ Michelle Reed
Michelle Reed
TX Bar # 24041758
mreed@akingump.com
Kendrea Tannis
TX Bar # 24090429 (application pending)
ktannis@akingump.com
AKIN GUMP STRAUSS HAUER & FELD LLP
1700 Pacific Ave. Suite 4100
Dallas, Texas 75201

Marcella Burke
TX Bar # 24080734
mburke@akingump.com
AKIN GUMP STRAUSS HAUER & FELD LLP
1111 Louisiana St.
Houston, Texas 77002

Edmund G. LaCour Jr.,
TX Bar #24085422 (application pending)
edmund.lacour@bakerbotts.com
BAKER BOTTS L.L.P.
910 Louisiana St.
Houston, TX 77002
Telephone: (713) 229-1234
Fascimile: (713) 229-7805

Attorneys for Plaintiff


APPENDIX A
ALJ Hearing Transcript.

Case 3:14-cv-02948-K Document 1-1 Filed 08/15/14 Page 1 of 165 PageID 17
107263784 v1
BEFORE THE
UNITED STATES DEPARTMENT OF DEFENSE
DEFENSE OFFICE OF HEARINGS AND APPEALS
WASHINGTON HEARING OFFICE
TRICARE MANAGEMENT HEARING
-------------------------------------------------------x

IN THE APPEAL OF BENEFICIARY:
KAITLYN N. SAMUELS, DEPENDENT
OF CAPT. MARK SAMUELS, USN
Task No. 11-43

-------------------------------------------------------x

Case No.

AH-101962

Courtroom 1631
Federal Building
110 0 Commerce
Dallas, Texas
Friday,
February 10, 2012
The above-entitled matter convened for hearing, pursuant to notice, at 10:00 a.m.

BEFORE:

HON. CLAUDE R. HEINY
Administrative Judge
107263784 v1
APPEARANCES:
On behalf of the Agency:
MICHAEL R. BIBBO, ESQ.
Chief Claims Collection
Office of General Counsel
16401 E. Centretech Parkway
Aurora, Colorado 80011-9066
(303) 676-3462
On behalf of the Beneficiary:
COLBY VOKEY, ESQ.
CHAD BOND, ESQ.
Fitzpatrick Hagood Smith & Uhl, LLP
Chateau Plaza, Suite
140 2 515 McKinney Avenue
Dallas, Texas 75201
(214) 237-0900
Reporter: Barbara Wall
107263784 v1
INDEX
OPENING STATEMENT: PAGE:

On behalf of the Government:
Michael R. Bibbo ..................................................................... 29

On behalf of the Applicant:
Colby Vokey ............................................................................ 15

WITNESS DIR CROSS REDIR RECROSS
Jennifer Samuels 45 74 75 --
Suzanne Sessums 79 119 128 134
146 147
147 148
Fernando Acosta 153 176 -- --
Mark Samuels 193 218 -- --
Jennifer Samuels 229 -- -- --

107263784 v1
EXHIBITS IDENTIFIED RECEIVED
BENEFICIARYS
A 90 90
B 90 90
C 90 90
D 90 90
E 152 152
F 251 251
G 252 252
H 254 254
I 254 254

CLOSING ARGUMENTS: PAGE:
On behalf of the Government:
Michael R. Bibbo ..................................................................... 264
On behalf of the Applicant:
Colby Vokey ............................................................................ 258

107263784 v1
P R O C E E D I N G S
(Time noted: 10:05 a.m.)
JUDGE HEINY: Good morning. Im Claude Heiny. Im an administrative judge for the
Defense Office of Hearings and Appeals, and I have been detailed to conduct this TRICARE
hearing. It is Task Number 11-43. Today is Friday, the 10th of February 2012. Everyone except
Mr. Bibbo is in Dallas, Texas. Were in Courtroom 1632, 1100 Commerce Street in Dallas,
Texas. Mr. Bibbo is at the TRICARE Management Activity at 16401 East Centretech Parkway
in Aurora, Colorado. Everyone else is here.
Lets start with the entrances of appearance. Mr. Vokey.
MR. VOKEY: Good morning, Your Honor. My name is Colby Vokey. My Bar number
is 24043391 here in the State of Texas, and Im here representing the Applicant, and I also have
with me Mr. Chad Bond, also for the Applicant.
JUDGE HEINY: And Mr. Bibbo, if you could introduce yourself on the record.
MR. BIBBO: My name is Michael Bibbo. Im an attorney with TRICARE Management
Activity and Im representing TRICARE Management Activity in this hearing.
JUDGE HEINY: Thank you, Mr. Bibbo.
Also in the courtroom, if we could introduce the other individuals with us today.
MR. VOKEY: Yes, Your Honor. This morning we also have Captain Mark Samuels,
United States Navy, and we have Ms. Jennifer Samuels and we have Kaitlyn Samuels.
JUDGE HEINY: All right. Have that seat.
MR. BIBBO: Thank you. JUDGE HEINY: On the 12th of January I sent out a letter
setting the hearing in which four issues were set forth. Does either party at this point in time,
2
first off, agree that those are the issues that were here to talk about and are there any changes,
additions or corrections to those issues?
MR. VOKEY: Agreed, Your Honor.
JUDGE HEINY: Mr. Bibbo?
MR. BIBBO: I agree.
JUDGE HEINY: Okay. So thats what were here today, and obviously, Im going to go
over a little bit of background information. This material has been sent out a number of times in
preparing but Im going to go over it just to have it on the record.
First off, this hearing is not adversarial. My role is that as a finder of facts, and in that
capacity I may consider as evidence any testimony, as it says, briefs or affidavits in lieu of
testimony, or documentation presented by the appealing party and TRICARE.
At the conclusion of the hearing I will take the matter under submission and as soon as
possible Im going to prepare a recommended decision, and that recommended decision will be
final upon adoption by TRICARE in the Office of Assistant Secretary of Defense Health Affairs.
So in this case, I do not have the final word. Basically, I make a recommendation, TRICARE
will carefully consider that decision, and then their make their own determination, agreeing,
disagreeing or agreeing in part.
First off, Captain Samuels, I want you to know that the date and time of this hearing has
been set aside specifically for you in order to hear this matter. There has been a bit of time
getting to this. I believe I was assigned this case in July. There were some problems trying to
get the cases coordinated; I had a mistaken believe that I had to coordinate this with other cases
in Texas and then later I was informed that no, that I could conduct this hearing stand-alone, and
so we finally got to the point where we were able to do that. I know theres been a change of
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attorneys and that additional time is necessary to become familiar with the material. The
Government is concerned with this and would like to move this on as timely as possible.
I believe that the 1st of March was when the decision was made. This is Exhibit 31 with
the position, and I believe that the decisions in these cases were made back in March of last year,
in July I was assigned the case, and since then weve been trying very hard. I realize that justice
delayed is many times justice denied, so were going to try to move this along just as quickly as
we can. But I want to make sure that everyone knows that you have as much time as you need to
present your material.
Im going to go down the checklist just to make sure that I have covered everything. As I
said, this is Task Number 11-43. Those exhibits offered on behalf of the Beneficiary will be
marked alphabetically. Should the Government have exhibits, were going to mark those
numerically. Going down the checklist. The exhibits are not in yet. The transcript will be here
in probably ten days to two weeks. Ill get a recommended decision out just as soon as we can;
well try to move this up to the front of the line because of the delays that weve had.
So Ive introduced myself, weve gone to the statements and we have the four issues to
be addressed. This is, for the record, TRICARE Management Activity Hearing Number AH-
101962. This is Kaitlyn N. Samuels, TRICARE Standard Beneficiary.
In this case, as I stated earlier, Im a fact-finder. Im going to let the sides present their
cases as they choose. Im going to try to keep my interruptions to a minimum, but certainly Im
going to have questions. This is a very complex case, and Im going to ask questions at the
appropriate time but Im going to let each side present their material as they desire.
I have a procedural history, and in opening statements which will go to in just a minute,
we will give you the opportunity to correct everything that I have said in my opening. My
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understanding is that Kaitlyn was born September 7, 1996, suffering from cerebral palsy, that
back in 2009, as part of the therapy, therapy was given at the Rocky Top Therapy Center,
treatment was given in 2009 and 2010. My understanding is that there was then a denial of that
in December of 2010. At tab 10 there was a request for a formal review of that denial, October
15 of 2010 there was a request for a review of the denial. Part of it going on in that appeal, the
argument was what was the difference between therapy being provided on a therapeutic ball or
balance board and therapy being given on a horse, that being a dynamic surface. The decision
was that hippotherapy being a non-covered benefit, hippo coming from the Greek meaning
horse, horse therapy.
Following that, there was a number of studies that were submitted, and those are all
found in my file under tab 14. A number of the studies being made showing that hippotherapy
improved muscle tone, balance and posture control in children. The problem with the studies
being is that they were very small studies with just a couple of individuals being involved. And
at tab 17 there was a denial stating insufficient scientific data and peer-reviewed medical
literature to support the effectiveness of hippotherapy in treatment of patients.
The issue, of course, first off, is it medically necessary, and second, is the treatment being
given supported by reliable evidence. There was a review of the material, additional hearing
information is found at tab 24. The Hayes Directory is part of paragraph 27, again, a number of
studies being issued.
And then it comes down to 31 and that was TRICAREs statement of position, and that
brings us to today. TRICAREs position which well hear shortly, again for the record, being
that the treatment is not proper, that the data provided so far was insufficient to prove that this
was reliable evidence that this treatment is the appropriate treatment, and as such, TRICARE,
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part of its duties, of course, being the guardians of the Governments Treasury, they pay for those
medical procedures which are warranted, but by law they cannot pay procedures which are not
warranted. And so in this case I believe there was a payment and then at some point in time
TRICARE asked for the $700 in overpayment at tab 13 to be returned.
So basically, were here today to determine whether the treatment provided to the
Beneficiary is indeed hippotherapy or some other type of treatment not standard for the
Beneficiarys condition, whether the treatment provided to the Beneficiary has been proven safe,
effective and comparable to standard treatments for the Beneficiarys condition, and if not so
proven may not be cost-shared, and whether hippotherapy is unproven within the meaning of
TRICAREs regulations and policies.
Thats a quick reading of what brings us here today and just a little bit on the background
of the delay that occurred. I was assigned the case in July, we tried to set it, we ran into some
difficulties, including the Government shutting down in September, preventing us from traveling
during that period of time. Thereafter, I believe there was a change of attorneys because for a
while we were working with Leslie Roberts, and then there reached a point when Ms. Roberts
did no longer continue in this case, and then Mr. Vokey was appointed. There was an appropriate
amount of time for Mr. Vokey to get ready for the presentation of the material, and then there
came a point in time where other case prevented Mr. Vokey from devoting his attention to this.
Those were very valid and just reasons for why we delayed this. We finally were able to set this
for early February and were here today to hear this matter.
Before we go to opening statements, are there any procedural matters or other questions
or other matters that should be addressed. Mr. Bibbo?
MR. BIBBO: No, sir, I dont believe so.
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JUDGE HEINY: Mr. Vokey?
MR. VOKEY: No, Your Honor.
JUDGE HEINY: All right. In this case well start with the opening statements.
Normally in many cases the Government goes first, but in this case since the Beneficiary is
appealing this, it seems to make sense for Mr. Vokey to start with the opening statement and then
Mr. Bibbo to make his opening statement.
Mr. Bibbo, any objection to going second?
MR. BIBBO: No, no objection to that, sir.
JUDGE HEINY: Then weve reached the point of opening statements, and lets go to
opening statements.
OPENING STATEMENT ON BEHALF OF THE BENEFICIARY
MR. VOKEY: Good morning, Your Honor.
I was out to dinner with my wife a couple of nights ago and we were on our way back
home, and theres really two ways to drive back home, I go down Coit Road, she goes down
Preston Road. She decides to take Preston which I know decidedly is the slower route to go, and
I make a comment: I always go Coit. She says something back to me, and I say, Thats fine, you
can go whichever way you want. Now, the tone that I used I intended to actually mean: I dont
care, thats fine, you can do what you want. She interpreted that to be some kind of sarcastic
remark that was criticizing the way that she was driving, the route that she was driving, and she
got very angry. And I could tell she got very angry and Im trying to explain to her no, you can
go any way you want, and she would just get angrier and angrier.
And it wasnt until the next day that I realized it was a matter of semantics, the particular
words that I used changed everything that happened in the car on our drive home that night.
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This case is also a matter of semantics, and here one of the key words thats used in a
variety of different ways and often misused is the word hippotherapy. What we have is we have
Kaitlyn Samuels who is in the back of the courtroom right now. And sir, I want to correct you,
she does not have cerebral palsy; thats not the condition that she suffers from. Its agenesis of
the corpus callosum and pachygyria, and its significant, its different because agenesis of the
corpus callosum qualifies as a rare disease; its something that is very infrequently found in the
United States.
And in order to understand the treatment that Kaitlyn has been receiving and to figure out
exactly what kind of treatment it is, is it hippotherapy, is it physical therapy, is it some kind of
other therapy, youve got to know a little bit about Kaitlyn Samuels. Now, Kaitlyn is 15 years
old and shes had this condition her entire life because she was born with it. Not sure if it was
something that was genetics or it was just Mother Natures curse, but she was born with this very
same condition and has been like this her entire life.
Now, what is agenesis of the corpus callosum? Its a separation of the corpus callosum or
the corpus callosum is missing and the pachygyria is the flattening of the gyria of the brain, so
the brain is much smoother than it should be. And this has resulted in a lot of neurological,
neuromuscular problems with Kaitlyn her whole life. She also has a number of other things that
affect her as well, including seizure disorder.
So what does that mean for Kaitlyn Samuels and for Mark and Jennifer Samuels? That
means a complete alteration in whats happened in their life. Kaitlyn requires an extraordinary
amount of effort, an extraordinary amount of money, and just constant attention. And I wanted
to correct you, Your Honor, on the fact that this is not cerebral palsy and this is a different
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condition because its absolutely crucial when we deal with the semantics and the term
hippotherapy and what Kaitlyn actually has been going through.
Mow, she has seen a slew of doctors in her lifetime, and most importantly for here, shes
been seeing an orthopedic doctor and neurologist, and youre going to hear form the neurologist
later this morning, Dr. Acosta -- Im sorry -- this afternoon, and hes going to describe Kaitlyns
condition and give some of the science and some of the background of why this can occur and
whats happening with her.
Youre also going to hear from Kaitlyns physical therapist, not her hippotherapist, not
some other kind of occupational therapist or something else, her physical therapist. And youre
going to hear from both Captain Samuels and Jennifer Samuels, and youre going to hear a lot
about Kaitlyn and Kaitlyns routine, what she does when she gets up every morning, her
personality, and what she does when she goes to Rocky Top to get physical therapy.
Now, Kaitlyn right now at 15 years old is at a kind of crucial time in her life. Once she
hits about 20 years old, her physical abilities are going to be kind of maxed out, so this is an
absolute crucial time in her life for physical therapy, it must be done now. She has skills right
now, she has a certain quality of life. There is a chance that she at some point can be able to
walk and stand on her own, to feed herself, and if any of those things are possible, if her quality
of life has any chance or either maintaining what it is now or getting even a little bit better for the
rest of her life, now is the time when she must receive physical therapy.
So what can she do and what cant she do? Well, first of all, Kaitlyn, as youre going to
hear from her parents, is a wonderful girl, a very social girl, loves to be around people. She has
certain things that she loves: she loves to eat, she loves to watch movies, she has a brother and
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sister, loves to be around them. Shes just a very happy girl, and aside from the ailments already
mentioned, otherwise healthy.
But her limitations is she cannot communicate, she cannot speak, so neither Mark or
Jennifer can ask her whats wrong and get a response from Kaitlyn as to whats going on
physically with her body. Her mental level is somewhere between infant-toddler-preschool.
Shes been tested for that and youll hear about that, but most likely shes about a toddler level as
far as her mental capacity.
Now, is this important? Its absolutely critical because were dealing with when we give
physical therapy to Kaitlyn theres a huge problem, because you have someone whos got the
mental level of a toddler, maybe high infant, theres only certain ways, as you know, Your Honor,
that you have to deal with someone whos a toddler, who can respond at that level.
Now, we already know the agenesis of the corpus callosum and the pachygyria, some of
the physical ailments she suffers from as a result of this is curvature of the spine. This is where
the physical therapy comes in in the first place. The entire purpose of this physical therapy is to
strengthen her body and to keep her spine straight, and as youll hear from the physical therapist,
if left unattended her spine will curve more and more and if nothing else is done about it, it will
keep curving until her organs will be crushed and shell die. So physical therapy is absolutely
important in order to maintain her quality of life and keep the spine from curving so she can
function as a human being.
So she must have physical therapy. She must have physical therapy to strengthen her
legs, to maintain strength and flexibility in her hips, her core muscles in her midsection, and to
keep that spine straight. So how do we do that? She must receive physical therapy. And
physical therapy is crucial in this case involving the legs, the hips, that whole mid-body area.
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So how is it accomplished? There is a lot of different ways for people who meet the
physical ailments to accomplish that. You can use therapy balls, Swiss therapy balls I think
theyre often called, barrels, and what youre doing is you have to take that person and put them
on that tool and manipulate their body so that the legs get stretched, that theres proper posture,
that the spine is straight, and that all these important muscles work all in the midsection and in
the legs.
So when Jennifer and Mark found Rocky Top that does therapy with horses, they found
something that was an incredible stroke of luck that they came across this. Its absolutely
imperative that Kaitlyn receive this. Now, had she gone to other physical therapy and has she
gone to it? Absolutely. But the problem is Kaitlyn does not respond to that physical therapy,
and youre going to hear from Mark and Jennifer about that very same thing, that when you take
Kaitlyn to say physical therapy at school or some other physical therapist and they try to do it in
a clinical setting of sitting her on a ball or a barrel, this 15-year-old girl who has the mental
capacity of a toddler will not respond, she will not cooperate. She knows its a clinical setting
and shes resistant.
However, when you put her on the horse, everything is different, and what teenage girl or
little girl doesnt love being on a horse anyway. So magic happens when Kaitlyn Samuels gets
on a horse. She cooperates, she loves it, she enjoys it, and while shes on that horse the physical
therapist does all those things necessary to address her physical condition.
So we have Kaitlyn who must have physical therapy or her condition will degenerate,
possibly even death, and the physical therapy thats not on a horse, those in a clinical setting
dont work because this girl who has got the mental level of a toddler, at best, does not
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cooperate. So the only option we have here is physical therapy using a different tool, thats
where the horse comes in. So the other tools do not work, the horse does.
Now, the flap over all this is the fact that this is called hippotherapy and that
hippotherapy is untested, its unproven, and Ive read these things put forth in the materials that
TRICARE provided me, and a lot of it I agree with. Hippotherapy in a lot of ways is untested or
theres not enough research to back up whether its proven effective for a lot of different reasons,
and I agree with that wholeheartedly.
But whats being confused here, the semantic problem that we have in this case is the use
of the term hippotherapy, and the fact that, Your Honor, you made the mistake of saying this is
cerebral palsy is actually pretty key here because hippotherapy, that term as its used, is used for
cerebral palsy and a number of other different conditions.
Now, the difference is hippotherapy, as they refer to it, is often used for cognitive
rehabilitative problems, so someone whose brain isnt functioning right, that the neurons arent
connecting, and we do have that problem with Kaitlyn. But the use of a horse in this
hippotherapy is used to somehow make some kind of connection, neurological connection
between the brain and the rest of the body and hoping that the brain somehow responds.
Hippotherapy is kind of a broad term and it can encompass a lot of things. Often its
mentioned in connection with physical therapy, occupational therapy, and speech therapy. This
hippotherapy, as they call it, is often used for Wounded Warriors who have had traumatic brain
injury and they put them on a horse hoping theres some kind of connection. And as youll hear
from Suzanne, the physical therapist, it is used for speech therapy and there are some children
who utter their first words on the back of a horse.
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Now, those ways they use a horse, this hippotherapy would not be covered by TRICARE,
and I absolutely agree 100 percent. Why? Because what were dealing with is some kind of
cognitive rehabilitative procedure dealing with theres something wrong with the brain not
working and were hoping putting them on a horse will make some kind of connection and right
that wrong. And make no mistake about it, Your Honor, that is not what is happening with
Kaitlyn Samuels.
Kaitlyn Samuels is undergoing physical therapy, physical therapy because of the
curvature of the spine and the way the muscles and the joints in her body are reacting. That is
what were dealing with Kaitlyn Samuels and her physical therapy.
The purpose of the physical therapy is to keep that spine straight, we dont want the
organs crushed, and to enable her muscles to hopefully at some point that she can be able to
stand and walk, maybe even on her own.
At present she can stand and walk with assistance, she can drink from a cup, she cannot
eat on her own yet because chewing is somewhat of a problem, but for quality of life and what
she goes through every day and what her mother and father go through every day, the physical
therapy is absolutely essential so that she can perform some of those certain basic functions that
we take for granted every single day, things like sitting on the toilet and going to the bathroom,
things like getting in and out of bed without needing some kind of mechanical lift device being
purchased for her to put her in and out.
And right now shes at the critical stage where she can go one way or the other. If she
digresses, we could be dooming her to a life of almost in a jail cell. Right now shes got a certain
standard of life, a certain quality of life that could be better, and theres a chance that it could
13
improve significantly, significantly maybe not in physical appearance but significantly in the
quality of life for Kaitlyn and for Mark and Jennifer.
So what were really dealing with her in this issue this morning is not whether that this is
some kind of unproven device, whether hippotherapy is something that should be accepted by
TRICARE, what were dealing with right here is what Kaitlyn Samuels was receiving, and that is
physical therapy that just happens to be on the horse. That is the tool, that is the Swiss exercise
ball or the barrel, but instead it is a horse. And why must it be a horse? Because the others dont
work.
And what were seeking here, theres a lot of terms getting thrown out and theres a lot of
confusion and theres a lot of things going back and forth, but what we cant lose here is the
notion of justice, and Kaitlyn Samuels must have that horse therapy, and Mark Samuels, as a
captain in the United States Navy, has given years and sacrificed a great deal for his country, and
so has Jennifer and their other two children for him to serve in this country.
And part of the reason why we join the service, we join the service to serve our country,
we have patriotic feelings, but when we join the service were also told: Hey, sign here because
one of the things you get is great medical care. Now, thats certainly not going to be a sole
reason why young men and women join the service but its certainly an important factor. Its an
important factor on staying in and continuing to sacrifice for your country.
So when Mark Samuels enters the Navy hes told: Boy, its great benefits and he can
have better benefits. And he gets married and Jennifer hears the same thing. And then they have
their first child, Kaitlyn, and now it hits them that, my Lord, medical care is going to take over
our life. And theyre at a stage now where they have a little girl who must have physical therapy
and its being denied by TRICARE.
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If theres any justice in this world, Your Honor, youll see that this is not some
experimental hippotherapy modality, this is simply a horse used as a tool to perform essential
physical therapy for Kaitlyn Samuels.
Thank you.
JUDGE HEINY: Mr. Vokey, if you can do me a favor, that monitor on that table, can you
move it one way or the other because I cant see Kaitlyn.
MR. VOKEY: You bet, Your Honor.
JUDGE HEINY: And if you could move that chair, because I cant see Kaitlyn with the
chair in my way. If you could move that chair, thats great right where shes at, but I need to see
her.
Mr. Bibbo, opening statement.
OPENING STATEMENT ON BEHALF OF THE AGENCY
MR. BIBBO: Thank you, sir.
Sir, you mentioned in the lead up to introduction that this was a complex case, and I
respectfully disagree with that. In fact, this is really a simple case. And when you get into any
type of medical literature, when you get into the condition of Kaitlyn Samuels, certainly there are
a lot of complexities, but the issues are quite simple. TRICARE does not pay for unproven care
and hippotherapy, which this is hippotherapy, is not proven under TRICARE regulations, and
therefore, TRICARE cannot pay for this treatment.
Its clear when you look at the authorities about hippotherapy that theres causes for
optimism, and at the least, riding a horse is very beneficial for a child suffering from cerebral
palsy or similar conditions, and any child who suffers from those conditions could experience
that, you see the pictures, the videos, its very compelling, its very inspiring. And there really is
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reason to believe that this therapy with a horse, hippotherapy works, and theres certainly a lot of
anecdotal evidence and some limited promising studies, and I would wholly endorse somebody
who had a child with this condition to seek out this type of treatment, and if I was in that
position, I would certainly want my insurance to cover anything that I would think could help my
child who was suffering from this type of disability.
This is interesting and important stuff but its not relevant to this hearing and under
TRICARE regulations which specifically we are conducting this hearing under 32 CFR 199.10,
and TRICARE isnt insurance, its a statutory benefits plan thats administered by TRICARE
Management Activity, TMA, and TMA has to administer the TRICARE benefit in accordance
with federal law, federal regulations and the TRICARE policy, and the decision in this case has
to be made under those authorities.
To be covered under TRICARE, hippotherapy must be a treatment thats proven by
reliable evidence, and reliable evidence is defined in 32 CFR 199.2(b) and on that point it really
is not closed, its not proven. Now, before we get to why its not proven, I will raise Mr. Vokey
argued that this is just physical therapy using a horse. Well, by definition, hippotherapy is
physical therapy, occupational therapy, speech therapy using a horse, and whether youre going
to call it a stand-alone modality, whether youre going to call it a treatment strategy, under
TRICARE they must be proven. Its a treatment, a specific form of treatment, and it must be
proven safe and effective to be reimbursable under TRICARE.
How do we know that this is hippotherapy? Look at the TRICARE policy, Exhibit 17.
Theres been plenty of reviews done about hippotherapy and all looking at the safety and efficacy
of hippotherapy, and in fact, if you look at page 3 theres a definitive finding from the Medical
Benefits Reimbursement Branch that hippotherapy is a stand-alone modality.
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The provider in this case is Rocky Top. We can look at their website or what was on their
website, and thats in Exhibit 29, they talk about we offer hippotherapy; hippotherapy is licensed
physical therapists, occupational therapists and speech therapists using a horse under a doctors
prescription. Subsequently they changed that, and now theyre offering themselves as offering
physical therapy and using the horse as a tool, and we can kind of realize why they made that
change.
Lets look at the Hayes assessment at Exhibit 27. Basically, Hayes considers
hippotherapy a physical therapy, occupational therapy and speech language pathology treatment
strategy, and it reviews the safety and effectiveness of that strategy.
To say that the animal is simply another physical therapy tool is really an absurd
argument. Its not the same as a ball, exercise equipment. TRICARE has b beneficiaries in
every country. People ride elephants in Thailand. If a bunch of physical therapists decided they
wanted to put kids on elephants in Thailand, do you think that would be reimbursable? Could
Seaworld hire physical therapists and bill TRICARE or other insurers for providing dolphins or
orcas as a physical therapy tool? That would be completely unproven.
And I dont say these things to belittle hippotherapy, but to make the point that adding an
animal changes the treatment. Just like Mr. Vokey said, you put them on a horse and everything
is different. Yes, everything is different, thats why were talking about hippotherapy.
Now, I will concede and I will endorse that hippotherapy is far more advanced than a
therapy with any other animal. Theres literature looking at hippotherapy and its safety and
effectiveness, but unfortunately, its not proven under TRICAREs authority. So its helpful to
review the authorities that were dealing with. Lets consider this hearing first. This hearing is
bound by 10 USC, Chapter 55, its bound by TRICARE regulations which is 32 CFR Part 199,
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and its bound by all the TRICARE policy, procedures, instructions and guidelines, and you can
find the authority for that at 32 CFR 199.10(6), so were bound by all that in this hearing.
So what does it say in TRICARE regulations, that TRICARE only pays for proven care.
You can find that in 3 2 CFR 199.4(g) (15). In 199.4 (g) (15) (C) it defines when care is proven,
and it says unless reliable evidence -- and thats an important term -- shows that any medical
treatment or procedure has been the subject of well controlled studies of clinically meaningful
end points which have determined, and for the purposes of hippotherapy, its safety and efficacy
is whats important here, the issue here is the safety and efficacy of hippotherapy.
Also, 199.4(g)(15)(D) additionally says that if reliable evidence shows that further
studies or clinical trials or necessary to determine the safety and effectiveness, then its not
proven. And the issue here is if you look at the literature, virtually every study or article calls for
more research.
So the consistent thing in both of those definitions is you need to have reliable evidence.
So what is reliable evidence? Well, reliable evidence is defined that theres a hierarchy -- thats
found at 32 CFR 199.2(b) -- and it requires things like well- controlled trials, technical
assessments, published reports of national organizations, et cetera. Specifically, excluded are the
personal professional opinions of providers or that a provider would use a certain technique on a
beneficiary to uphold their result.
You can make the argument that this standard is too strict, that TRICARE should pay for
more cutting edge care, that TRICARE should do more for disabilities, especially in cases like
this, and looking at hippotherapys literature, maybe theres some type of problem with the
standard type of medical research in proving, in having the type of studies that could prove
18
hippotherapy. That may be true, but thats really not within the scope of what were addressing
today.
And Im not here to dispute on behalf of TMA that Rocky Top is a good place, that it
helps people, some with cerebral palsy or other related disabilities, and also as Mr. Vokey
referenced, the Wounded Warriors, but its simply not relevant to this forum. Were bound by the
authorities that I previously stated, and while there may be other avenues to see change of
TRICARE regulations and policies, this is not one of them. Theres only way for the beneficiary
-- and when I use the beneficiary, I use just generally the beneficiary putting the case as
represented by Mr. Vokey, if I want to refer to Kaitlyn Samuels specifically, Ill refer to her -- but
the beneficiary can only show that hippotherapy is proven through reliable evidence. Theyre
not going to offer any today. Theyre going to offer some personal professional opinions by
providers and theyll be informative in the treatment give to the beneficiary, but really, it wont
go to whether hippotherapy is proven.
Kaitlyn Samuels parents will testify. Again, well be able to understand more about her
condition and the treatment and how it may be helping her, and of course, we hope that it would,
and I believe were going to see a video that shows the type of treatment that Kaitlyn Samuels is
receiving and maybe how its helping her.
We can leave this hearing all believing that hippotherapy is amazing and life-changing
and has dramatic effects on Kaitlyn Samuels. Its compelling, its extremely important, of
course, to Kaitlyn Samuels, to her family and really anyone who cares for people who suffer with
these type of disabilities, but really its irrelevant to the issues presented at this hearing. That a
treatment may work for one beneficiary really has no relation to whether it can be paid under
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TRICARE, that a single physical therapist and neurologist believes it works is equally irrelevant
to the issues that we face today.
Now, sir, you mentioned that the Beneficiary previously presented some studies and
TRICAREs MBRB, Medical Benefits Reimbursement Branch, reviewed all of those and one
might think why would did the Beneficiary submit all these studies about hippotherapy if were
not dealing with hippotherapy, but perhaps theres been a change in the strategy in how you want
to approach kind of fitting this in somewhere where maybe TRICARE, you could make an
argument they should pay for it.
But really, when you look at those studies, TMA -- and those were reviewed at TMA with
the Medical Benefits Reimbursement Branch, we reviewed every single study that the
Beneficiary submitted and only one of those was consistent and reliable evidence and was
previously considered by TMA and the Hayes technical assessment, and it showed promising
results but the study had significant limitations. We look at what is reliable evidence, the Hayes
study at Exhibit 27, page 5 -- Exhibit 27 is the Hayes study, at page 5 it states the need for further
research, that its a potential but unproven benefit, and it sites the low to moderate quality of the
evidence.
And thats just where we are with hippotherapy and nothing that the Beneficiary is going
to offer today is going to have any effect on whether hippotherapy is proven under TRICAREs
authorities. There is really one simple truth here and its just a lack of reliable evidence under
TRICARE establishing hippotherapy as a proven treatment, and sir, thats all you need to know
to make your recommendation in this case.
As you stated, the Beneficiary has the burden or proof in this case, the Beneficiary isnt
going to offer any further reliable evidence, hasnt offered much to begin with, and really there
20
just isnt anything to overcome the presumption that TMAs determination about this treatment
being hippotherapy and not being proven is correct.
I dont blame the Beneficiary, her parents acting on her behalf seeking TRICARE to pay
for this treatment that they believe is helping their daughter and may very well be doing so, but if
they want that, theyre in the wrong forum right now. Congress can change the laws, they can
make hippotherapy a TRICARE benefit, the Agency could change its regulations through
rulemaking or adopt new policy, in this forum we have to accept those authorities as they are.
So what were going to see today? I expect well see a lot of compelling, interesting
testimony and information, and again, sir, as you said, there are complexities in this evidence that
will come up, theres a lot of complex issues that may arise from what we hear today. Some of
it, you know, whats societys obligations to the physically disabled, and especially, as Mr. Vokey
argued, the disabled children of service members who give so much for their country and do that
with the understanding that theyre going to get a significant medical benefit.
On the individual level, you want to give a child anything that you think would help
when they suffer from such a severe disability. On a macro level, you have to manage a benefit
for millions of people and you also have to worry about long-term safety and effectiveness when
you say okay, this treatment is a TRICARE benefit, and so there have to be standards for that,
and that may not always make sense to a beneficiary or a sponsor when they look at it on an
individual level. If theres a lack of research here on hippotherapy, maybe the military health
system should be funding more, and maybe we are, there may be studies going on that were not
even aware of.
So whether TRICAREs laws, regulations and policies serve what sometimes are
conflicting interests when you look at individual beneficiaries versus you have to manage a total
21
benefit for a large spectrum of people, whether TRICAREs authorities do that effectively, we
can discuss that for hours, we could have a conference about it, we could discuss it for days, but
really the issues before us today are quite simple: hippotherapy, using physical therapy on a
horse is hippotherapy, is a specific treatment and one would assume it has to be performed under
pretty strict guidelines and regulations, but under TRICARE, hippotherapy is not proven due to a
lack of reliable evidence, and therefore, it is simply not eligible to be reimbursed by TRICARE,
and that really is the simple truth.
Thank you, sir.
JUDGE HEINY: Thank you.
Mr. Vokey, before we got to the first witness, do we need a short break?
MR. VOKEY: No, sir, I dont. Maybe, sir, well take five minutes.
MR. BIBBO: Whos the first witness?
JUDGE HEINY: Whos going to be your first witness?
MR. VOKEY: Jennifer Samuels.
JUDGE HEINY: Jennifer Samuels will be, but were going to take a five-minute break
before we do that.
When will you do your video?
MR. VOKEY: Sir, were going to have Jennifer Samuels go first, shes going to do some
as a witness, well put her on again later, and then when Ms. Sessums comes on it will be during
Ms. Sessums testimony, shell be the second witness.
JUDGE HEINY: All right. Its 10:46, were going to be off the record for five minutes.
(Whereupon, a brief recess was taken. )
22
JUDGE HEINY: Were back on the record. The time is now 10:55. All parties present
at the break are again present. And Ms. Samuels, if you can have a seat at that table.
In these proceedings I do not have the ability to swear witnesses but I do draw their
attention to Title 18 of the United States Code, Section 1001. Simply put, thats a federal statute
applying to these proceedings which makes it a crime to knowingly and willfully make a false
statement to the Federal Government during the performance of its duties. Should one do so,
they can be subject to a fine of up to $10,000 and up to five years in prison. And you understand
this warning?
JUDGE HEINY: Could you please state your name, spell your last name?
THE WITNESS: Jennifer Samuels, S- A-M-U-E-L-S.
JUDGE HEINY: And provide either a business or a home address.
THE WITNESS: 9904 Eddleman Court, Keller, Texas 76244.
JUDGE HEINY: And youre Kaitlyns mother?
THE WITNESS: Im Kaitlyns mother.
JUDGE HEINY: Your witness.
MR. VOKEY: Thank you, Your Honor.
Whereupon,
JENNIFER SAMUELS having been first duly cautioned, was called as a witness herein
and was examined and testified as follows:
DIRECT EXAMINATION BY MR. VOKEY:
Q Jennifer, lets start by finding out a little bit about who you are. Where do you
come from?
A I grew up in Pensacola, Florida.
23
Q And I want to get to a little bit about how you met Mark and how you got
married. So grew up in Pensacola, Florida. Did you go to high school there?
A Yes, high school and college.
Q And where did you go to college?
A University of West Florida.
Q And Jennifer, what did you study there at the University of West Florida?
A I received a bachelor of science in health education.
Q Health education. What does a degree in health education mean?
A Basically I worked in wellness programs, you could teach health in schools, just
basic health and wellness.
MR. BIBBO: Excuse me. Could I interrupt for a second? Im not getting the greatest
audio. I dont know if we can somehow adjust the microphones.
JUDGE HEINY: Bring that closer to you, see if that makes any difference.
THE WITNESS: Is that better?
JUDGE HEINY: Is that any better?
MR. BIBBO: Thats better, yes. Thats good.
JUDGE HEINY: Speak close, speak loud.
BY MR. VOKEY:
Q So what got you interested in why you wanted to be a health education major?
A I was just interested in health in general, considered nursing at some point in my
life, and I also was very much into exercise at the time, taught aerobics, was a personal trainer,
worked at health clubs, and it just kind of fit with all of my interests. I had an interest in
nutrition as well.
24
Q So after you graduated did you actually work in that field?
A Yes.
Q What did you do?
A I directed an employee wellness program for St. Lukes Hospital in Jacksonville,
Florida, and I also worked at and managed a health club at some point. We moved a lot, thanks
to the Navy. I also directed a corporate wellness program for a large health club in Corpus
Christi, Texas that dealt with the contracts with chemical companies, Citgo and such.
Q Now, I may end up slowing you down a little bit because weve got to make sure
that the court reporter picks up everything for the transcript.
A Okay.
Q So when did you meet Mark?
A When I was working at St. Lukes Hospital in Jacksonville; he was there for the
Navy in Jacksonville.
Q And when was that?
A 1991.
Q So you met Mark, I guess you guys fell in love there. Was it love at first sight?
A Maybe.
Q Okay. So when did you first -- your life changed when you started following
Mark around.
A Right. I moved later that year up to Maine with him when he was transferred to
Maine.
Q Where is that, Brunswick?
A Brunswick, Maine.
25
Q And when you were up in Brunswick, Maine, what did you do while you were
there for work?
A That is where I worked at the base fitness center, I also managed a womens
fitness center and ran a wellness program there for them.
Q And what about you and Mark, when were you married?
A 1993 in Brunswick, Maine.
Q So in 1993 in Brunswick, where did you go after Brunswick?
A We went to Corpus Christi, Texas.
Q And Mark was down there, what was he doing down in Corpus?
A He was an instructor in the training program.
Q And what did you do while you were there in Corpus?
A Initially I worked at Corpus Christi Athletic Club, thats where I ran the corporate
wellness program. I continued to do that. Kaitlyn was born in Corpus and after she was
diagnosed -- I was going to work part- time but after she was diagnosed it got to be too much.
Q And when was Kaitlyn born?
A She was born in 1996, September 7, 1996 .
Q I want to find out a little bit about Kaitlyn which is why I had you come up here.
So she was born in September of 1996. When did you first notice that there was something
wrong with Kaitlyn?
A I was convinced when she was four months old that something was wrong, but
nobody believed me, but I knew. She just wasnt reaching for toys and doing things like my
friends babies were, but it was very subtle so the doctors just usually theres not something
wrong so they go with that. When she was six months old thats when they started going okay,
26
maybe something is wrong, but again, they still did not think it was anything significant. We
went to the eye doctor who said something is wrong but its not her eyes, and then we wound up
in neurology.
Q And what did you find out going to the neurologist?
A The neurologist, after examining her, said that yes, something is going on but he
did not think it was anything significant, he ordered an MRI and also genetic testing and was
floored when he saw her MRI with the agenesis of the corpus callosum and pachygyria.
Q And were going to have Dr. Acosta here to talk about that as well, but since Ive
thrown that term out there, can you explain to Judge Heiny what exactly that is?
A Shes missing the corpus callosum. The corpus callosum connects the two sides
of the cerebrum, there are other connections, commissaries, so her brain does connect but in a
less efficient, roundabout way. She also suffers from pachygyria which is a migrational disorder.
Pacha just means wide and it just means the gyria of her brain is like theyre kind of spread out,
theyre fewer than they should be and theyre larger than they should be.
Her MRI is fairly rare. I do know other families with a child with agenesis of the corpus
callosum, but her whole MRI is very rare, it was sent to a specialist, William Dobbins, who
studies lissencephaly and this type of brain abnormality, and he said it was very rare. Her
neurologist at Johns Hopkins, when we lived there, said it was very rare. So Ive never met
anybody who has the same or even a similar MRI as Kaitlyn.
Q So early on for Kaitlyn, I guess she wasnt developing like other children were,
and how was that, how did you notice that?
A Mostly it was that initially she was not reaching for things. At four months old
typically a baby is reaching for everything. She was not reaching for anything, and it was
27
almost she was too good, she was too content. That was the initial issue. The doctors, what they
picked up on was that her focus, visually she wasnt focusing on things a six-month-old should,
and thats why they initially sent us to the ophthalmologist who said it wasnt her eyes, it was
something going on in the central nervous system which is actually what I thought before I went
to the eye doctor, but I had to take her there first.
Q And this is just kind of relying on what I remember as a parent when my children
were young, about somewhere around six months, six to eight months they start to crawl and
they start to move around.
A Right.
Q Did that happen with Kaitlyn?
A No. She didnt sit until she was about nine months. Of course, she was
diagnosed at this point, she was diagnosed between at seven and eight months, but all of her
developmental milestones were delayed, and the only reason she did many of them is because of
therapy and me working with her every single day at home, even having friends come over to
help me do exercises with her.
Q So at what point did you really realize that this was a completely life- changing
condition that Kaitlyn had that was going to alter not only her life but your life forever?
A Initially, because of the rarity of her MRI, and also because there are people that
have just agenesis of the corpus callosum and find out later in life when they hit their head or
need an MRI, they find out oh, I dont have a corpus callosum, so there is a very wide range of
abilities with just missing the corpus callosum, and because the pachygyria along with it was
very rare, no one really knew exactly. So what the neurologist told us at that appointment was
28
that she could be delayed and stay delayed for the rest of her life, she could catch up, or she
could be anywhere in the middle.
I would say its been very gradual over time. She always makes progress, she continues
to make progress but its at a very slow pace. Gradually over time I think we realized -- probably
when she was a toddler I really realized that were not going to catch up, and its just more
acceptance as time goes on.
Q I kind of assume you probably spend more time with her probably than anyone
else on this planet.
A Yes.
Q I want to find out a little bit about Kaitlyn and what kind of girl she is. How
would you describe your daughter?
A Shes very -- shes just a happy kid, shes generally very happy. We went through
some periods in her life maybe where she was not as happy. She definitely shows frustration, I
can tell when shes frustrated, but generally shes just happy, shes just happy to be around her
family, shes happy to be around her friends at school, she just really enjoys people.
Q She cant communicate, no oral communication skills.
A No. She verbalizes but no words.
Q So how do you know when shes frustrated?
A By what she does. Shell do a little bit of head-banging, she might bang her hand
to her chin, just motions and noises she makes that we have just learned over time that shes
frustrated.
Q What are some of the things she loves to do?
29
A She loves to eat, she loves to go out to eat, as tiny as she is, she loves to eat. She
has some oral motor issues with feeding but she manages and still enjoys it. She loves to go to
the pool, we have a neighborhood pool. She loves any time just being around people when
people interact with her. She has movies she likes to watch, and she loves Elmo and various toys
involving Elmo. Basically, if you just interact with her, lights and sounds, toys, things like that,
shell interact and play, but mostly she just really enjoys being around people.
Q And Kaitlyn is 15 now.
A Yes.
Q You said she loves movies. Does she love any movies?
A No. She has the Kaitlyn Top Ten we call it. Theres ten movies that are not
similar, theyre animated, nine of them are Disney, thats the movies she enjoys watching, and if
you put in something different, she lets you know that shes not interested in it.
Q And I mentioned to the Judge earlier about her mental abilities. Can you kind of
describe where Kaitlyn is as far as mental development?
A When tested she tests somewhere in the high infant range, but I personally
believe, based on things she does and showing recognition of things, I think shes somewhere in
the toddler to pre-school range, definitely. I mean, shes certainly not at 15 years old but shes
much higher than she tests.
Q And you said shes a very social person. How do you know that?
A Well, she has this flirting issue with men, with young men, she flirts and she tries
to kiss her male doctors and teachers, and she just verbalizes, we call it her happy sounds when
shes around people. She definitely knows the difference between men and women, and just by
looking at her you can see that shes happy.
30
Q Now, what about -- I mentioned some limitations to the Judge and you already
mentioned speech, and what about eating?
A She can hold her cup completely on her own, pick it up, drink, put it down.
Sometimes it falls down; she needs help righting it if it falls down. She can take a loaded spoon
to her mouth and put the spoon back down. Were still working on scooping now; thats one of
her goals at school.
Q And what about chewing?
A Everything has to be minced really small. She just does not -- it goes to her oral
motor issues, she just does not chew, she doesnt move it to her teeth and actually chew like she
should.
Q I also mentioned a seizure disorder. Can you tell the Judge a little bit about that?
A When she was around four to five years old I started noticing what looked like
seizure activity to me, knowing that she was at risk for it. I took her back to the neurologist and
they did an EEG and she does suffer from epilepsy. Her seizure are pretty well controlled on
Trileptil, so she has to have that medication, and if she does, we typically only have one or two
seizures a month.
Q And what else, there was also some issue with sleep with Kaitlyn?
A Yes. The first probably seven to ten years of her life she had sleep issues. She
just could not sleep through the night. That has gotten better, partly, I think, because of the
seizure medication that she takes before bed and also we give her melatonin and that seems to
help.
Q And melatonin is something you give for sleep.
31
A Right, before sleep, but your body produces melatonin and it just gives her a little
bit, her body just probably does not produce enough.
Q Okay. Ive already kind of told the Judge in opening statement that this is
physical therapy, it isnt hippotherapy, were dealing with a certain kind of physical therapy and
what it was for. Id like to go through a little bit about Kaitlyns daily schedule to understand
how her physical body is crucial to everything she does. Okay?
A Okay.
Q So whats the routine for Kaitlyn, when does she wake up?
A She gets up around 6:30 and shes able to -- she has a sleep safe bed that has sides
on it so she cant fall out, I just flip the side down and shes able to hold my hands and pull
herself to the edge of the bed and she stands up, we walk to the bathroom. Shes able to sit on
the potty. I have to give her support when she walks, its mostly for balance. Then I get her
ready for school. Her bedroom is upstairs so we have to go down the stairs. Again, with
assistance, she can walk down the stairs. She eats breakfast at a regular table in a regular chair,
shes able to sit in that.
And then after she eats breakfast we get her in her wheelchair. We dont bring the
wheelchair in the house, were able to help her ambulate throughout the house which is why this
physical therapy is so crucial to give her the strength, maintain that strength and improve that
strength to be able to do that. After she gets in her wheelchair, the bus picks her up at our
driveway.
Q Okay. So she goes to school at what time?
A The bus picks her up about 7:15 and then shes at school, by the time the bus
brings her back in the afternoon its about 4 :15 .
32
Q Now, shes 15 and shes going to school, so what are they doing with her while
shes in school. I mean, shes not getting 15-year-old classes. Right?
A No. Shes at a middle school but shes in a self-contained classroom with three
other children with similar abilities to hers. She has an IEP, an individualized education plan,
which has goals and thats what they do all day. They have a very structured day where they
have circle time, they have snack, they have lunch, they go to adaptive PE, they work on all four
of the childrens goals, whatever they may be. One of Kaitlyns is walking and transitioning.
They also have music therapy, and then home after.
Q So what time does she get home?
A About 4:15.
Q And what does she do when she gets home, does she have something she likes to
do?
A Thats when we let her watch some of her movies, let her have some downtime
like my other two want.
Q And now, youve got two other children.
A Yes.
Q How old are they?
A Eleven and eight.
Q Which one is eleven?
A Danielle is eleven, and Jake is eight.
Q And Jake is eight. And do they do activities, they go places?
A Yes, and Kaitlyn just goes along with us, karate, keyboard, dance, and she just
goes along with us when we have to take them to their activities.
33
Q She just gets dragged along with them.
A Yes.
Q Like a lot of siblings do to other siblings things.
A Right.
Q So what about Rocky Top, when shes going to Rocky Top when does she do that?
A Tuesdays at 5:30.
Q And how long is she there for?
A Its a 30-minute session.
Q On Tuesdays when shes at Rocky Top then she goes back home, and then what
happens at home?
A Then its dinnertime, bath time and bedtime. It takes a long time to do all those
things.
Q So you get home for dinner and youve got to prepare dinner for the whole family,
including Kaitlyn. I guess you have to do special things to prepare Kaitlyns food then.
A Yes.
Q Chop it up.
A Food processor.
Q And then bath, can Kaitlyn bathe herself?
A No. But I taught her when I was pregnant with my son when I couldnt lift her to
climb in and out of the tub, so she can transition, with me holding her, in and out of the tub,
which again, is another huge issue that we want to keep.
Q And what time does she go to bed?
A Usually around eight.
34
Q So that sounds like a full day with Kaitlyn.
What are your goals with Kaitlyn, what do you want to see happen with Kaitlyn?
A Well, I mean, if I could control it, I would love to get some words, I would like to
see her taking some independent steps walking, and I would love for her to be able to do that last
little issue with feeding to load the spoon with the food.
Q All right. And Im going to ask you a little bit about this later, but youve
mentioned several times about you want her to be able to keep that, these transitioning skills or
be able to stand and walk with assistance. Is there a fear that that may go away?
A Well, yes, because of the scoliosis. With the scoliosis, as you said earlier, as it
progresses it will crush the organs at which time prior to that the orthopedist would recommend
surgery which hes already starting to talk about surgery. We had a lapse in our going to physical
therapy due to all of this situation, and her scoliosis went from 31 degrees to 40 degrees during
that lapse.
Q Let me stop you right there, I want to make sure we capture that. So at some
point because of all this dispute over going to Rocky Top, she stopped going to Rocky Top.
A Right. We kept doing each level of the appeal. We owed them so much money
because no payment was made from January -- for some reason they paid all of 2009 except for
November, so November no payment and all it kept saying was resubmit. There was no medical
denial, there was no clear answer. Id call that 800 number and theyd just say, Yes, we need
more information which was a standard thing that happened with her therapy. It would initially
be kicked out, resubmit, theyd send all this information, and it would get paid.
So when they initially were not paying in 2010, we didnt know. Suzanne even called
trying to find out what is it that you want. It took quite some time. So then by the time found
35
out theyre denying this based on they dont believe its physical therapy, we owed them so much
money that I was not comfortable going back there and keep our account open and I thought we
were going to resolve this quickly, so we took some time off .
We also then lost our therapy time because they got more clients and it was hard to work
her into a time, so she did have a lapse of therapy, and during that time, Suzanne noticed it
immediately when she saw her when we came back that her scoliosis looked much worse. It
happened gradually so I thought she looked a little worse but it wasnt as dramatic to me. I just
took her to the orthopedist recently and we talked about where she was at each appointment and
when she was getting the physical therapy she was at 31 degrees, we were fine, we werent
talking surgery. Now shes at 40 and hes getting concerned about possibly needing to do some
surgery.
Q Let me just interrupt you a second. So how long did you stop going to Rocky Top
for?
A We stopped going summer of 2010 and then I took her sporadically for the next
year where we just paid for it, and I dont have a real good record of that because we dont have
the file.
Q We can ask Suzanne if she remembers exactly how long the break was. So are we
talking about several months of a break?
A Right.
Q So after several months of a break of not going to Rocky Top, when she comes
back in Ms. Sessums sees a noticeable change.
A Yes.
36
Q And I think you said the x-rays showed a change from a 31-degree curvature to a
4 0-degree curvature?
A Yes.
Q So almost a ten degree difference.
A Right. I dont know if you want me to point one thing, this is huge to me, if she
has surgery theres a 50 percent chance that she will no longer walk or stand, that her center of
gravity, because they will need to fuse her to the hips, will be just off enough that she will no
longer walk. I took her to another orthopedist and he said the exact same thing, to get another
opinion. So to me, he life would change drastically.
Q Okay. So because of the scoliosis you must do physical therapy to keep the spine
straight?
A Her scoliosis is a neuromuscular scoliosis, its not a fixed scoliosis like a typical
child might have. You can actually stretch her out of it. If you lay her on the floor, you can
straighten her spine up. So its crucial that were working on stretching and strengthening, and
Suzanne can, of course, talk more on that.
Q And I was ranting and raving to the Judge about that this is physical therapy, this
is not hippotherapy, and that other types of tools used in physical therapy dont work with
Kaitlyn. Can you explain that?
A Well, shes 15, shes been receiving therapy almost her entire life, she knows
when shes in a clinical setting, and she shuts down, much as shes doing right now because shes
bored, and if shes not participating, then we cant get the results. We can only passively stretch
her and its hard to make someone work on strength if theyre not participating.
Q So youve been through this a number of times.
37
A Yes. Shes gotten therapy for years.
Q And I mentioned, I think, barrels and balls. Have you experienced with using
those in a clinical setting with Kaitlyn?
A Yes.
Q Can you explain to the Judge exactly what Im talking about?
A Well, theyre just huge balls like a lot of people might exercise on, and you sit her
on - - many times this is how they worked on her trunk strength, they would sit her on the ball
and they would rotate her to have to react to that rotation to work on her strength which is what
the horse does just by moving, causing her to do that and what Suzanne instructs.
Q But theres a problem with Kaitlyn doing that, getting on a ball in a clinic?
A Yes. If she lays down or closes her eyes or starts getting verbally frustrated, then
shes not participating which is what happens.
Q So the end result is she doesnt get the strengthening that her body needs when
she goes to a session using a different tool for physical therapy.
A Correct.
Q Is there any other tool besides the horse that provides -- that she participates in
that provides that strength?
A No, not that we have witnessed, no, and I think everything has been tried, having
lived and having had access to so many different therapists in so many different parts of the
county. This is the only thing that works.
Q And Jennifer, let me make sure Im absolutely clear on this. Are you taking her to
Rocky Top for physical therapy on a horse because of the agenesis of the corpus callosum and
38
the pachygyria, or is this because of the physical curvature of the spine, the scoliosis that youre
trying to correct.
A Well, it really all goes together. Her scoliosis is caused by her neuromuscular
issues, so one causes the other, but right now the important thing to me is avoiding surgery with
the scoliosis.
Q And were talking about the curvature of the spine, the muscles and the stomach,
the hips, the legs. Is that right?
A Exactly. Her orthopedist told me, I asked him -- I just saw him recently and I let
him know what Suzanne told me when we were talking about her x-ray results, and I said, Her
physical therapist believes its because of that gap in therapy. And he said, Thats very likely
because using the horse will increase her trunk strength.
MR. VOKEY: Thats all the question I have for Ms. Samuels at this point. Well be
calling her again a little bit later, but Id like to move on to the next witness after Mr. Bibbo has
had the opportunity to ask questions.
JUDGE HEINY: Mr. Bibbo, questions?
MR. BIBBO: I dont think I have any questions, although I guess whats the rationale for
splitting up her testimony?
MR. VOKEY: Just the way we want to present the information in a certain logical
manner, we wanted to have Ms. Samuels talk now prior to Ms. Sessums coming in. Optimal
world, if I had my witnesses all in the right time and order, theyd be in a different place, but
thats the only reason, Your Honor.
JUDGE HEINY: Okay. I have just a couple of questions.
Kaitlyn has been to therapy for years and years. Correct?
39
THE WITNESS: Yes.
JUDGE HEINY: Before you went to Rocky Top she was in therapy. How often a week
was she in therapy?
THE WITNESS: Well, when she was younger before she was in school, she was getting
physical therapy twice a week, occupational therapy twice a week and speech therapy twice a
week. Once she went into school, it gradually decreased because she was also getting therapy at
school.
JUDGE HEINY: And so when you were doing this therapy, what was it costing? Is this
a half hour or is this an hour therapy?
THE WITNESS: Its a half hour. Its $80 to $85 for 30 minutes.
JUDGE HEINY: And thats what youre paying now.
THE WITNESS: Yes.
JUDGE HEINY: When therapy was given before, what was it costing?
THE WITNESS: When TRICARE was covering it?
JUDGE HEINY: When she was doing therapy that wasnt at Rocky Top.
THE WITNESS: Oh, it was pretty similar. She might have gone longer, it was always
around $80 to $150 according to -- she used to go to longer sessions, she used to do an hour of
PT when she was much younger, but its comparable to, its the same rates.
JUDGE HEINY: So before she may have gone longer but she was getting $80 to $150
for her therapy then, now shes doing $80 to $85 for a half hour.
THE WITNESS: Right.
JUDGE HEINY: All right. Questions based on my questions?
MR. VOKEY: Yes, sir.
40
FURTHER DIRECT EXAMINATION BY MR. VOKEY:
Q So I understand this right, the cost for physical therapy, whether its on a horse or
whether youre using a ball or a barrel, is the same.
A Yes.
Q And I guess youve become pretty familiar with explanations of benefits and the
TRICARE system.
A Yes.
Q You probably could have a degree in that by now, I imagine.
A Right.
Q When theyre billing this, the billing codes for this physical therapy, is it any
different whether its on a horse or whether its on a barrel?
A Its the same codes and TRICARE pays the same, monetarily its the same.
MR. VOKEY: Thank you.
JUDGE HEINY: Mr. Bibbo, questions on my questions?
CROSS-EXAMINATION
BY MR. BIBBO:
Q Just one question based upon that. You were speaking of the codes, Ms. Samuels,
the physical therapy codes, but when you go to Rocky Top you know youre going to get
treatment on a horse. Correct?
A Correct. I know that theyre going to use the horse as a tool.
Q Theyre not going to use balls or other standard type of physical therapy?
A They do have that equipment there. Its an option, they do have that equipment
there. Its an option.
41
Q Youve never sent her there to go on a ball or a Swiss medicine ball. Every time
she goes there, shes on a horse.
A If Suzanne felt that that would be more beneficial, I would absolutely say fine.
Q Every time shes been there shes been on a horse. Right?
A Not always. I think initially -- and Suzanne can talk better to this because shes
actually running the sessions, I have my other children with me there at the same time, but I
know that she has been on other pieces of equipment there.
MR. BIBBO: Okay, very good. Thank you.
JUDGE HEINY: You can step down.
MR. VOKEY: One follow-on question.
JUDGE HEINY: All right.
REDIRECT EXAMINATION
BY MR. VOKEY:
Q When this was being filed with TRICARE, are you trying to hide the fact that its
equine and theres a horse being used, or does it say that?
A It says it right there in the notes, in Suzannes notes, and initially in April of 2 009
when I took her for her evaluation, the notes say right in the assessment that it is believed that
Kaitlyn will do well with physical therapy using the equine. So our intent of what we were
going to do at Rocky Top was there from the first session, and ironically, we filed it and waited
to make sure that there werent any issues with doing therapy there because they had never had a
TRICARE patient. It ended up not mattering that they approved it. They had the information
from the initial session.
42
Q Jennifer, just so the Judge is clear what were talking about, Im going to hand
you, this is from Governments Exhibit 4, a statement from the Rocky Top Therapy Center. I
want to make sure were on the same page here. Please take a look at that.
A Yes, this is it.
Q And this that youre looking at, this is the evaluation from Rocky Top of Kaitlyn.
Right?
A Yes.
Q And in there does it mention specifically equine?
A Yes. It says: Assessment, patient should do well with physical therapy using an
equine to assist with strengthening, increasing overall tone, and gait training.
Q And on the second page under short-term goals, it also talks about number 2:
patient will maintain quadruped on equine with max assist.
A Yes.
Q So from the very start with Rocky Top it said equine.
A Yes, from the first assessment.
Q And it also says in there that this is a physical therapy on a horse.
A Yes.
MR. VOKEY: No more questions, Your Honor.
JUDGE HEINY: Mr. Bibbo, any additional?
MR. BIBBO: No, sir.
JUDGE HEINY: Okay. You may step down.
(Whereupon, the witness was excused.)
JUDGE HEINY: Next witness.
43
MR. VOKEY: I call Suzanne Sessums
JUDGE HEINY: Ms. Sessums, if you could come forward and have a seat just there.
Please state your name and spell your last name.
THE WITNESS: Suzanne Sessums, S- E-S-S-U-M-S.
JUDGE HEINY: I need to have you speak loudly and clearly. The microphones in this
room do good but we need to send it videoteleconference, so if you could get as close to that
microphone as possible, that will be helpful.
Provide either a business or a home address.
THE WITNESS: 1113 Christina Lane, Haslet, Texas 76052.
JUDGE HEINY: As you have previously heard, we do not swear witnesses in this
proceeding but we do draw their attention to Title 18 of the United States Code, Section 1001,
making it a criminal offense to knowingly and willfully make a false statement to the Federal
Government in the performance of its duties. Should some one do so, they could be subject to a
fine or imprisonment. And you understand this admonition.
THE WITNESS: Yes.
JUDGE HEINY: All right. Your witness.
MR. VOKEY: Thank you, Your Honor.
Whereupon,
SUZANNE SESSUMS having been first duly cautioned, was called as a witness herein
and was examined and testified as follows:
DIRECT EXAMINATION
BY MR. VOKEY:
Q Suzanne, good morning.
44
A Good morning.
Q First I want to find out a little bit about you and who you are. You are a physical
therapist, Im assuming.
A Yes.
Q So where are you from, are you from this area?
A Originally Im from Wichita Falls, Texas .
Q And why were you interested in becoming a physical therapist?
A My brother was in a car accident when I was in high school and he had a
traumatic brain injury, and so I was with him through all the therapies that he received, and he
was in a coma for three months, and so thats how I got interested.
Q Kind of motivated you.
A Yes.
Q So you dont just sign up to be a physical therapist, I assume you have to go
through quite a bit of education.
A Yes. You do your undergraduate work and when I went through I was actually the
last bachelors class. I went to UT Southwestern Medical Center in Dallas. It was a two-year
program after you had all your undergraduate work done. Now its a doctorate program and a
three-year program.
Q Now, physical therapy, does it require some kind of licensure?
A Yes.
Q And what kind of license does it take?
A You sit for a board for the State of Texas and then you renew your license every
two years.
45
Q So what do you have to do to renew your license?
A You have to do continuing education, you have to do 30 hours of continuing
education, and just submit your application.
Q And the 3 0 hours is this in the areas of physical therapy or other medicine, or
what?
A Physical therapy. An physical therapy is much more stringent on continuing
education than, say, the occupational therapy. It has to be approved and its pretty difficult to get
those courses approved.
Q Okay. Now, weve heard these terms a little bit, weve heard the term physical
therapy, occupational therapy and speech therapy. These are all different kinds of therapies.
Right?
A Yes.
Q Now, you are a physical therapist.
A Yes.
Q What is occupational therapy?
A Occupational therapy deals a lot with showering, eating. A lot of times its
differentiated by fine motor versus gross motor, so physical therapists will work on sitting,
walking and occupational therapists will work on writing eating. Thats a gross difference.
Q How about speech therapy?
A Speech therapy works on talking and language, and they do a little bit of oral
motor work as well.
46
Q Now, I think one of the exhibits that the Government has actually came from
Rocky Top, talked about hippotherapy or the use of horses for physical therapy, occupational
therapy and speech therapy. Is that correct?
A Yes.
Q So the horse can be used, I guess, for a variety of different things.
A Yes.
Q Now, for speech therapy how does it work with a horse?
A Okay. So Im not a speech therapist but Ive had probably ten kids say their first
word on a horse, so it has something to do with the motivation of the horse, and theyre just
engaged. So before we have the horse move, we make the patient say walk on or we make them
move their hands, and so its just engaging them in the session. We do not have a speech
therapist at Rocky Top, but from what I have seen, Ive had parents report back that their speech
is just dramatically increasing.
Q All right. So there at Rocky Top what exactly do you do there?
A I am a physical therapist, so I have a therapy room and all the equipment that I
would need in a regular clinic setting, and depending on who Im seeing, some of my clients I
dont use a horse at all with, they may just be in the therapy room with me. And in Kaitlyns
case, she might need to be stretched on a barrel first before we get her on the horse. Right now
Im able to get her right on the horse without having to do any prep work so we do the therapy
on the horse. Are you wanting me to describe what were doing right now?
Q Well get to that. Hold on one second.
A Okay.
Q Aside from working there at Rocky Top, do you do other physical therapy work?
47
A Yes . I work for the Fort Worth school District on Mondays, Wednesdays and
Fridays, I work at Rocky Top on Tuesdays and Thursdays, and I work at a hospital in Decatur on
the weekends, and then I also do some side work at a nursing home when the school district is
out.
Q Theres been a number of studies that have been provided that are filling the
binders here concerning hippotherapy and some other things, but I want to show you an article
here by Barbara Glasow. Are you familiar with that?
A Yes.
JUDGE HEINY: Mr. Bibbo, have you received a copy of this?
MR. BIBBO: Im not sure what article this is.
MR. VOKEY: Sir, I thought I sent this to Mr. Bibbo, I had a couple of things. This is
short two-page article written by Barbara Glasow who is a physical therapist from the American
Hippotherapy Association.
JUDGE HEINY: So this is material that you thought had been mailed to Mr. Bibbo?
MR. VOKEY: I thought I had emailed it to Mr. Bibbo.
MR. BIBBO: I may have it in my email. I can take a short break to go print it out. Im
not sure when you sent it.
MR. VOKEY: It would have been in the last few days, Mike.
MR. BIBBO: Yes, maybe its with the -- I have these images here of the spine, I just
printed those. Was that on that same email?
MR. VOKEY: I dont remember.
MR. BIBBO: Well, if we can take like a really short break I can go check my email, my
office is just right down the hall, and I can print it out.
48
JUDGE HEINY: All right. We can do this a number of different ways. Obviously, we
can print it out now and we can also give you an opportunity to supplement the record later if
you disagree with this. Im not sure, its probably best to have you take a look at it.
Are there going to be other articles that youre going to be presenting so we can get them
all printed out at once?
MR. VOKEY: There is, sir. Its a printout from Horses for Heroes, its a little thing
about use of horses for our Wounded Warriors.
JUDGE HEINY: Okay. So theres two articles that were emailed, this one called
Semantics, and the other one on Horses for Heroes.
This does seem to be an appropriate time to take a short break. It is 11:39 a.m. Nothing
further, were off the record.
(Whereupon, a brief recess was taken.)
JUDGE HEINY: Back on the record.
Mr. Bibbo, since you just recently got these, Im going to keep the record open for an
additional two weeks in order to allow you not only to ask questions about them now but after
youve had more time later to read through them more thoroughly, you may wish to make
additional comments on them. I know how difficult it is to receive an exhibit immediately and
try to respond to it, so Im going to keep the record open for an additional two weeks to allow
you to make additional comments on these items.
MR. BIBBO: I appreciate that, sir, I think thats reasonable.
And that just made me think of one other matter. In terms of closing statements, we will
discuss this, but are we going to do just written closing statements? I dont think this is
something we discussed.
49
JUDGE HEINY: We can do it either way. If its your preference to do a written
statement, we can do that.
Mr. Vokey, whats your preference?
MR. VOKEY: I prefer to do an oral closing argument.
JUDGE HEINY: Okay. Mr. Bibbo, do you have any objection to Mr. Vokey doing an
oral and you doing a written, or however you wish to do it?
MR. BIBBO: I dont have any objection to that, and Ill just -- maybe we can address
that once weve gotten all the evidence in how were going to do that. I mean, I think if were
going to have a couple of weeks to comment to something, it may be beneficial to be able to
submit a written statement, but maybe thats just something we should address at the close of all
the evidence.
JUDGE HEINY: Okay. Well address that later in the proceeding.
MR. VOKEY: And sir, just for clarity and so Mr. Bibbo knows what were talking about,
the article from the American Hippotherapy Association I had marked as Exhibit A. Theres an
article, Mr. Bibbo, that you do not have, its from a website called equusforhumanity.com, it says
Horses for Heroes, and you do not have that, Ill have to send it to you, I did not have that able to
send it right now from the court. Its a short article. I have that marked as Exhibit B. We have
the definition of modalities from the American Medical Association thats Exhibit C, and what
looks to be a TRICARE policy memorandum is titled TRICARE and Cognitive Rehabilitation
Therapy, thats labeled Exhibit D.
JUDGE HEINY: Mr. Bibbo, except for the article on Horses for Heroes, youve got the
other three?
MR. BIBBO: I do.
50
JUDGE HEINY: All right, so Ive got A, B, C and D, and Mr. Bibbo has A, C and D: A
being the Semantics from the Hippotherapy Association; he does not have the Horses for Heroes
and Bit by Bit exhibit; he does have the exhibit which is going to be marked Exhibit C called
Modalities thats a single page from the AMA; and then D is a TRICARE two-page article and it
appears to be from the TRICARE website talking about hippotherapy. So thats A, B, C and D.
Since you dont have B but you have the other three, Mr. Bibbo, any objection to me
considering these documents?
MR. BIBBO: You know, with the caveat that none of this is reliable evidence that they
could go to show the care in question was proven, I dont have any objection to their
consideration for what theyre worth.
JUDGE HEINY: All right. So basically its a matter of weight, so they will be admitted.
(The documents referred to were marked for identification as Beneficiarys Exhibits A
through D and were received in evidence.)
JUDGE HEINY: All right. Lets continue.
Ms. Sessums, you remember that youre not under oath but the same warning applies.
You may continue.
BY MR. VOKEY:
Q Suzanne, I think we left off you were telling the Court I believe it was aside from
Rocky Top that you also did physical therapy at a school district?
A Yes.
Q What is that again? What do you do and where?
A I travel from school to school and I work with children that have any gross motor
delay that interferes with their educational abilities.
51
Q And what school district is that?
A Fort Worth.
Q And also you work at a hospital as well?
A Yes, at Wise Regional in Decatur.
Q And what do you do there?
A Physical therapy, outpatient and inpatient.
Q And are horses as a tool used at the hospital?
A No, not at this time. They have considered that, though.
Q Do they have any facilities there at the hospital for a horse?
A There is a facility nearby that they were looking at using. That hospital actually
also offers aqua therapy which I guess kind of is the same, its physical therapy using water, so
they offer that at that hospital as well.
Q Now, you said that there at Rocky Top you also have other tools besides horses to
use. Can you describe what you have to use?
A Yes. I have bolsters, I have balls, I have benches, I have walkers, Ive got barrels,
Ive got TENS units.
Q That gives us a pretty good idea. So you have other tools that you use in physical
therapy to do your work.
A Yes.
Q Now, your use of horses for physical therapy, its not like its a novel concept, its
approved by somewhere else, isnt it? Is it recognized by any other insurance companies or any
other government programs?
A Yes. There are insurance companies that will pay for it.
52
Q And Kaitlyn right now has actually been getting physical therapy from you at
Rocky Top. Is that correct?
A Yes. We have a grant from the Texas Veterans Commission for $250,000 for
hippotherapy, and the counseling side of it as well.
Q Now, I think you heard my opening statement and you heard Jennifer testify, and
theres a lot to do with this term hippotherapy. You have in front of you whats been marked as
Exhibit A. Its an article from the American Hippotherapy Association authored by Barbara
Glasow. Are you familiar with that article?
A Yes.
Q Now, the article seems to say that the use of the term hippotherapy, people throw
it out there, thats been a problem. Is that correct?
A Yes.
Q And why is that a problem?
A Because I am a physical therapist, not a hippotherapist; my license is in physical
therapy. Much as the same when Im using physioball Im not called a physioball therapist,
much as when Im using a bench Im not called a bench therapist, I am a physical therapist.
However, that term is used because when families like Kaitlyns want to search out a clinic that
uses a horse as a tool, much as a ball, then they can research it and thats how they can find us.
Theres not very many centers out there that can afford to run a center like this, so theyre very
limited in offering this. So I say it all the time, when the doctors write a prescription for
hippotherapy, I send it back. I am a physical therapist, I am not a hippotherapist.
Q And the term hippotherapy, when people use that term I think maybe its
misleading, but it also encompasses a lot of other things other than physical therapy, doesnt it?
53
A Right. Its speech and occupational therapy as well.
Q Now, you are doing treatment for Kaitlyn for physical therapy for what?
A For range of motion, for strength, for her scoliosis. My ultimate goal is for
Kaitlyn to walk; my most important goal is to keep Kaitlyn alive.
Q Okay. And were going to get to that.
So you mentioned that youve got a grant from the Texas Veterans Commission. Tell us
about that.
A I just gave you a copy of it. I just had a hard copy given to me yesterday. I think
weve been doing it since June is when it was approved, and its a $250,000 grant for a year for
hippotherapy, therapeutic riding and counseling for veterans or family members of veterans. So
if they live in a household with a veteran, then they are able to come to see us and its paid for by
the Texas Veterans Commission.
Q So this is the State of Texas paying for it.
A Yes.
Q Now, physical therapy for Kaitlyn right now at 15 years old, I stated in opening
argument its kind of a crucial time. Is that correct?
A It is.
Q Why is that?
A Its right when her body is maturing and these next few years are very crucial.
Shes going to be growing a lot and its very important that we do intensive therapy right now,
one, to prevent the spine from curving, and two, our ultimate goal of her walking, this is the time
that its going to happen. Once she gets to be in her 20s, later 20s, the chance of that happening
decreases significantly.
54
Q Okay. So describe for us exactly when Kaitlyn gets there, what do you do with
her?
A We stretch just a little bit and then we work on her walking before we get on the
horse, and then we actually use the ramp that leads up to a horse and we work on walking up the
ramp, and then we get on.
Q And then how long does she ride for?
A She rides for 30 minutes.
Q Im going to put that video on now and I want you to be able to describe to the
Judge kind of whats going on and whats happening in the video.
A Okay.
JUDGE HEINY: Before we go on, Mr. Bibbo, you received the video before?
MR. BIBBO: I did, sir, yes.
JUDGE HEINY: And you had a chance to look it over?
MR. BIBBO: I have, yes.
JUDGE HEINY: Okay, good.
MR. VOKEY: Sir, could we take a short recess so I can get the audio-visual guy? For
whatever reason its not coming up.
JUDGE HEINY: All right. Someday this will all be commonplace but there is a learning
curve on this. It is now 12:20, were going to take a short break.
(Whereupon, a brief recess was taken. )
JUDGE HEINY: Back on the record at 12:24. All parties present at the break are again
present, although, Mr. Bibbo, I have on my screen the CD and I cannot see you, but hopefully
you can hear me.
55
MR. BIBBO: I can hear you.
JUDGE HEINY: All right. Lets proceed.
(Video presentation began.)
BY MR. VOKEY:
Q So were going to play this and describe whats going on, and well pause as we
need to.
A So right here were working on Kaitlyn walking up the ramp, and as you can see,
her heels are not getting all the way down when shes walking, and so thats one of the things
were working on when were stretching her to try to get her heels down.
Q Let me pause it right there real quick. So you say shes walking but her heels
arent down. Why is that, why wont her heels touch?
A Shes tight, her muscles are tight, her calves are tight pulling her heels up.
Q Her calves are tight. So prior to going up here on the ramp this day, did you
stretch her otherwise?
A Yes. Do I go ahead and say how this video was taken that day?
Q Sure, please.
A Okay. So Kaitlyn had actually already ridden this day and when they came out to
take the video we put her back on for a second try, so shes actually walking pretty good right
now as opposed to before a typical session, if that makes any sense.
Q Okay.
A So yes, shes already been stretched and really good at this point.
56
And the lady thats standing behind me, all of these people that are in this video are al
volunteers, but the lady standing behind me is also a physical therapist that comes out to help me
as a volunteer.
Q And I see that youre putting her on a horse. There doesnt appear to be a saddle,
it appears to be just a blanket.
A Yes. We ride her in a bareback pad and thats so that she can get the warmth of
the horse and it gives her muscles a better stretch that way.
So you can see Kaitlyn in her acting as soon as we put her on.
Q So Kaitlyn is pretty responsive to being on a horse then.
A Yes. And she sits up completely independently the whole session, and as you can
tell, if you can see her in the courtroom, shes been slumped over most of the morning because
shes not engaged and shes bored, and thats what shell do in a typical therapy setting. So here
you can see the whole session, and this is, again, after weve already done one session, she is still
sitting up completely on her own and she is working those muscles the whole time. So right now
Im just trying to get her in alignment because she typically will lean because of the scoliosis.
So first I just get her on there where she looks as aligned as possible, and you can see that
leaning.
Q Now, as were watching her walk from the rear view of the horse and you can see
Kaitlyn bouncing around, why on a horse? What is special about using a horse as a tool versus a
ball?
A Okay. Many reasons. First of all, a horse is wide and so you have to -- its giving
her a constant stretch while shes on the horse, separating her legs. Also while shes on the
horse, we can stretch her legs on the side as well. The pelvis of a horse moves exactly the same
57
as the pelvis of a human, its got three dimensions to it, its got anterior, posterior, lateral and
rotation, so as Kaitlyn is on the horse shes getting that three-dimensional movement of her
pelvis, so when I get her off the horse, her pelvis is feeling exactly how it should feel when shes
walking.
On a therapy ball I dont get that three-dimensional movement of the pelvis in the same
way. On a therapy ball I can get Kaitlyn to sit up for 30 seconds; on a horse I get her to sit up for
30 minutes, so shes engaging her trunk muscles that entire time. On a therapy ball I can lean her
over for just a second and then bring her back to try to get her to work on her laterals, but on a
horse were constantly going in circles, constantly moving, so shes constantly having to work to
sit up, and shes engaged and shes actively working her trunk. On a therapy ball or on a bench
shes not going to be active with me.
Q So shes actively active even when the horse is just going in a straight line
forward.
A Yes. If youve ever been on a trail ride on a horse, you know the next day youre
pretty sore, and thats because youre having to work all of those muscles.
Q And you say all those muscles. What muscles are we talking about?
A Basically every muscle that you have from down to your calves and your thighs
hanging on to the horse to your back extensors, neck extensor, all of the trunk muscles are
engaged, so every muscle you have is working when youre on a horse.
Q All right.
A So we do all the exercises that you do when youre in a clinic we do on a horse.
So we can do sit-ups, well do bridges. One of her goals is the hands and knees which is also
58
called a quadruped. All of that is done on the back of a horse. So here were doing sit-ups with
her to help also increase her trunk strength.
So when we turn someone around backwards on a horse theres a reason we do that, and
the horse has something on its neck called its withers and its kind of like a bone that sticks up a
little bit, and youll see in the school district or in the regular therapy center youll see people
sitting on wedges, and what that does is it brings their pelvis more anterior.
So if you notice, Kaitlyn kind of sits in a slouch and she what we call C-sits, and so when
we turn her around backwards it props her pelvis so that shes sitting a little bit more anterior and
actually it sits her up a little bit straighter, so thats why a lot of times Ill turn her around
backwards. So were still working on all the trunk strengthening as were turning and starting
and stopping, but shes just a little bit more extended when we turn her around backwards.
And as you can tell, she just really enjoys it, and this is after weve had a full session, so
still engaged.
Q Now, it looks like you had the volunteers, it looks like theyre, I guess, bracing or
holding her feet, but she sits up herself on the horse.
A Yes. So the volunteers on the side will hold her feet down, kind of try to keep her
centered a little bit, but thats kind of all that they are doing right now. At times Ill have the
volunteers stretch her legs while theyre walking with her, and Ive taught them -- and like I said,
one of them is a physical therapist, as it is -- so I typically get on one side and the volunteer is on
the other side, and well stretch her legs out as shes sitting on the horse as were walking.
Q Why?
A To stretch her legs so that shes not so tight.
59
Q And I see that the tight muscles keep her from being able to walk very well, the
tight muscles in her legs, I guess her calves. Does it do anything else to her?
A Your whole body is all kind of connected by these muscles, and so it kind of starts
at the trunk and moves out, so shes tight everywhere, in her legs, in her hips and her -- Im
trying to keep this as easy terms as I can -- all of it is connected and its pulling on her hips, its
pulling on her spine, its whats creating the scoliosis, its whats creating the problems that shes
having in her hips, its all these tight muscles. So weve got to get the muscles around her hips
and her legs loosened and weve got to work the trunk muscles, strengthen some of them and
loosen other ones.
Q All right. Thank you.
A So when we go in a circle, what it does is it pushes Kaitlyn to one side where
shes really having to work to straighten out that spine, so those muscles that were wanting to
strengthen well really work when were doing a circle.
Q Now, other patients you see, you do use therapy balls, I think I heard Swiss
therapy balls, or therapy balls and wedges and barrels. Is she getting more from the horse than
she does from the barrels and the balls?
A Yes. Shes on a constant dynamic surface, so its as if she were on a therapy ball
and I were moving it the whole entire session without it stopping. Like I said before, she would
not actively engage her trunk for 30 minutes while Im putting her back and forth on the ball, and
the ball is also not giving her the benefit of the movement of the pelvis like what the horse does.
That training of the pelvis of how it needs to move in order to walk, I dont achieve that on a ball
with Kaitlyn.
60
The point of a therapy ball is to increase trunk strength, maybe you can do some
exercises, like lay down on it, sit up, just like what I did on the horse, and then move it side to
side to kind of make her work on pulling her work on pulling her muscles to the opposite
direction. So all of those things are achieved on the horse and then you get the three-dimensional
movement on top of that, and then you get her engaged on top of that. And thats why she has
great results on the horse and no results in the clinic.
Q And so for any of these tools that you use, the patient has to be cooperative and
engaged.
A Yes.
Q If theyre not, then you wont see any results.
A Right.
Q And so with Kaitlyn, shes not engaged or cooperative on the ball or the barrel
and she is on the horse. Is that correct?
A Yes.
So here Im turning her sideways, and I think were going to go to the other side,
actually. What you do, again, youre using the neck of the horse to try to elongate the one side.
I think were going to turn around. So we put her on the side of the horse thats a little bit longer
side on the neck, so where that is like a wedge its going to kind of push that hip up a little bit
and try to get her hips straighter where I want them to be in order to get her back straighter, so
thats why we turn her sideways.
And on this one, were not holding her trunk up, she is still engaging her trunk, she is still
having to work the trunk muscles. Were trying to center her pelvis so were holding onto her
61
pelvic bones to make sure that theyre all centered is what were trying to do. And then shes got
to hold her trunk up to work the muscles.
And shes definitely getting tired at this point.
Q And when she gets tired, how do you know?
A Shes not as vocal, shes not smiling as much, and she just starts to collapse over,
so shes tired. She typically does very well during the 30-minute session and she lasts the whole
time, for the most part.
So after we get down, typically well work on her walking and well notice the difference
from how she was walking before to how shes walking after. Typically, shell take much better
steps, her heels will be down more, and its just a lot better afterwards.
I dont know if you can see the difference in her spine when shes on the horse versus off
the horse, but she definitely is a lot more curved when shes not on that horse.
And here we just let them feed carrots and say thank you to the horse and all the
volunteers.
(Video presentation concluded.)
BY MR. VOKEY:
Q All right. Now, Jennifer was up here earlier and she was talking about how there
was a break in the time of several months when Kaitlyn was getting physical therapy with you at
Rocky Top, and then she came back, I guess used that grant. Did you notice a difference when
Kaitlyn first came back after that break?
A She did. We all noticed it, not just me, all the volunteers that had been working
with her. She definitely was curved a lot more. And I wasnt surprised when Jennifer told me
the degree of curvature difference because typically you cant tell with just your eye looking at
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someone that theyre curving that much, and she was dramatically more curved when she came
back.
Q And the curvature, and maybe a lot of it is just obvious, if theres greater
curvature she doesnt have better posture, but what other things does it do to the body when the
spine curves even more.
A Well, your ribs are attached to your spine, and so as it as it curves your ribs are
going to press in, and thats what will eventually crush your organs, and your organs will stop
working, and thats when theyll die.
So also, its affecting her hips, so her spine is attached at the hips as well, and so her hips,
I think shes having a little bit of problems when her hips wanting to come out of socket because
everything is getting twisted.
Q Okay. Ive got some diagrams of the body. Maybe you could kind of help
explain whats going on with Kaitlyn and what the treatment is doing. Okay?
A Okay.
MR. VOKEY: Your Honor, Im going to hold these up if thats all right.
JUDGE HEINY: Certainly.
And before we go on, Mr. Bibbo, you got copies of these in the mail?
MR. BIBBO: Yes, sir, I have them.
JUDGE HEINY: Okay.
BY MR. VOKEY:
Q Suzanne, I have here just an exhibit, its a skeleton, the spine of the human body,
the normal spine. Does that look accurate to you?
A Yes.
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Q Can you tell us, looking at that, whats going on with Kaitlyn and whats
abnormal about whats going on with Kaitlyn?
A So these muscles in here are all contracting and theyre tight and so its pulling all
these bones over, and these muscles over here are elongated. So what were trying to do is were
trying to stretch out this and tighten this to pull it back in alignment.
Q And is that the best diagram to help explain that, or would it be one with muscles?
A I can show you the same thing with the muscles, its just connected.
Q Lets do that. Im sorry.
A So these muscles right here are the ones that are tight on this side and theyre
loose on this side. And so as they contract and theyre tight, it pulls the spine over.
Q And what about with the hips?
A So as you can see, all these muscles are attaching to the hips, so if all this is tight
and all this is stretched, then its going to pull on one side and the other side is going to be just
off, if that makes sense. So youve got one side thats pulled up and one side thats lower.
Q So while shes on a horse shes stretching, I guess, the muscles that connect to the
hip and the back?
A Yes. Well, shes stretching the muscles that are attaching to the hip while shes on
the horse, and we are stretching the muscles in the back by when we turn, when we turn and it
kind of throws her off balance a little bit and she stretches those muscles on that side.
Q Now, is this a matter of what youre doing with Kaitlyn, is this just stretching
muscles or is this also building strength in muscles?
A Its strengthening all of her muscles.
Q All of her muscles, including the muscles in the hips and the back as well?
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A The strengthening comes with the muscles in the back and the trunk and the neck,
more so than like the arms or whatever. But shes also strengthening the muscles in the legs
when shes holding on to the horse with her legs.
Q All right. Suzanne, what Ive got in front of you now shows kind of the lower
extremities, looks like from the lower back and the hips all the way down to the legs, and this
particular diagram has the legs crossed as problems with having conjecture, but from Kaitlyn,
does Kaitlyn look anything like this?
A She doesnt look as severe in the lower extremities as this picture shows, she
doesnt scissor as much. This is showing legs that cross. Were able to get her -- and thats why
she can walk as well as she can because shes not quite as severe as this. If she were scissored
like that, she wouldnt be able to take the steps that she can take right now. But this is what her
legs are tending to do, so if she went for a long period of time without being stretched, then this
is how she would end up.
Q And the diagram behind it?
A I dont know if you can see, so let me show you this real quick. As this leg pulls
over, you see how this hip socket starts to come out, and thats kind of whats happening with
her.
Q And so the femur comes away from the hip socket?
A Yes.
Q All right. The picture we have right next to it is kind of the same view, only the
muscles, and you had mentioned that she was having problems walking, heels touching because
of tight muscles. Can you show us where that was?
A Its because of these muscles right here.
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Q And theyre tightening up, theyre contracting, or whats happening with them?
A Yes, they are tight. Theyre not contractures. A contracture is something that we
kind of say is fixed. You can actually stretch hers, so theyre spastic.
Q You said if its --
A If its a true contracture, it does not move and the only way to fix that is surgery
and to cut the muscles.
Q Now, in Kaitlyns case, thats not the case, the muscles can be stretched.
A Can be stretched.
Q Which is why this is what youre doing.
A Yes. Now, a spastic muscle can lead to a contracture eventually. It could come to
a point to where we would not be able to stretch her muscles, but right now we can.
Q Okay. Now, in looking at these pictures especially of the lower extremities, what
difference are you making with the horse that you cant make with a therapy ball as far as the
muscles go? What are you doing with the horse and the muscles that you cant do with the ball?
A Well, I mean, with a ball Im not going to stretch these muscles at all. Typically a
ball is used more for strengthening than stretching, so if I wanted to achieve this in a clinic, I
would try to put her on a barrel to get that stretch maybe, but the barrel is not giving the warmth
and the barrel doesnt have any dynamic movement to it, so its just a static stretch. The horse
provides the warmth and it has the dynamic component to it for a stretch.
Q And in Kaitlyns case, if you try to use the barrel for stretching and the ball for
strengthening, she just doesnt participate, she doesnt engage.
A Right. And the barrel doesnt give as good of a stretch as the horse does either.
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Q Is there anything else in the diagrams that help explain kind of whats going on
with Kaitlyns condition, or did we cover it pretty well?
A I think thats good.
Q Okay. Suzanne, theres also another document there in front of you thats labeled
Exhibit B thats for equusforhumanity.com, its entitled Horses for Heroes. Are you familiar
with that?
A I am not.
Q Then dont worry about that. Ill address that with someone else. Thats fine.
I want to make sure that the Judge understands the difference between what you do in
physical therapy and other forms of therapy, such as speech therapy, occupational therapy or
hippotherapy, or whatever the case may be. Why is what you do physical therapy and not
something else? Maybe its a bad way to ask the question, but what you do with Kaitlyn, thats
physical therapy. Is that right?
A Yes.
Q Why do you say its physical therapy?
A Because I am stretching her muscles, Im strengthening her, and Im helping her
to improve her quality of life so that she can stand when she transfers, so that she can walk, so
that she can sit up in a chair. All of that is extremely important to her quality of life and to her
parents. If Kaitlyn gets to where she can no longer bear weight and help with transfers, thats a
lot of lifting on her parents. If Kaitlyn cannot sit up straight while shes being fed, that can lead
to aspiration issues, and thats definitely more of the speech realm than mine, but it definitely
could cause problems down the line if she loses her ability to sit up. So its very important that
she at least continue to be able to assist her parents when she transfers and standing.
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Q So this standing and this transferring, if shes unable to do that, then I guess shes
going to be bedridden. Is that fair to say?
A Well, I mean, she will have to be lifted into everything, so her parents will have to
lift her from the bed to a chair, from a chair to wherever they want to put her, but they would be
totally lifting. And after seeing this for several years, that is the most important thing, quality of
life for any family. If they have someone that can assist and bear weight when they transfer, it
makes their lives so much easier.
Q And absent surgery, in the absence of physical therapy for Kaitlyn, whats going
to happen to her?
A Shes going to continue to curve. Depending on if they do the surgery or not, her
organs will be compressed and she will die. If they do the surgery, if it comes to the point that
they need to do the surgery, Ive had two patients that has been successful with, and I have had
patients that have died from the surgery and I have had patients that have had staph infections
from the surgery and had to have everything taken back out. So I havent had good results with
the surgery.
So we have an ability here to do something to help Kaitlyn not have to go down that road,
not have to make her parents make that decision. And its not something that they get to think
about for a long time. Theres a certain cutoff where they wont do the surgery anymore, they
just refuse, and once she hits that degree of curvature, they wont even give her the option. So
shes going to have that short time frame where shes going to have to decide do I want to do the
surgery or not. If we can help her from getting to that point where she has to make that decision,
then thats what we need to do.
MR. VOKEY: Sir, thats all the questions I have for Ms. Sessums.
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Mr. Bibbo, questions?
MR. BIBBO: Thank you.
CROSS-EXAMINATION
BY MR. BIBBO:
Q Good afternoon, Ms. Sessums. So youre a staff member at Rocky Top Therapy
Center. Correct?
A Yes.
Q And Rocky Top, it would be fair to say -- and as I understand your testimony,
youre a physical therapist and youre using a horse to achieve treatment goals with Kaitlyn
Samuels.
A Yes.
Q And isnt that consistent with the definition of hippotherapy that Rocky Top had
on their website as recently as a few months ago that said hippotherapy is when a physical
therapist, occupational therapist or speech therapist uses a horse to achieve treatment goals?
A Yes. And Ill tell you why it was changed recently was because we have not had
anyone working at Rocky Top that had anything to do with websites whatsoever, so the whole
website was updated, not just my section, all of it. We actually have someone now that can
update websites for us.
Q Well, that was Rocky Tops website. Correct?
A Yes. And hippotherapy is a term that people use all the time for speech therapy,
physical therapy, occupational therapy.
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Q And like you said, as I understood your testimony, you do get prescriptions from
physicians that say hippotherapy.
A And I send them back.
Q So when a physician -- and I understand your testimony or your position that this
is physical therapy using a horse -- but when these physicians send their patients to Rocky Top,
theyre looking for the patient to use a horse. Right?
A Yes.
Q Would you agree that its important, whether you call it hippotherapy or physical
therapy using a horse, if youre going to use a horse, there needs to be some level of training in
using the horse. Correct?
A There does not have to be, but there are agencies out there where you can get
trained. There are centers out there that provide this with no training whatsoever.
Q So you think it would be reasonable for a physical therapist who had never been
trained at all in hippotherapy or using a horse just to take a patient and throw a patient on a
horse?
A Well, I can tell you theres a center out there called Rialto Rehab that does exactly
that. But that is not me and I am trained, and I have had training.
Q All right. Theres someone who is doing that. Would you find that to be safe to
not have any training using a horse, to just put a patient on a horse? I mean, you said you dont
do that, thats not your practice.
A Not my practice. I cant assume that what theyre doing is safe or not safe, I can
just tell you thats what they do.
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Q And you are trained in using a horse, and as I understood the website, youre a
Level 3 instructor?
A Level 2.
Q Level 2 instructor. And thats by the American Hippotherapy Association?
A Yes.
Q Now, you would agree that you couldnt just -- theres a certain amount of, I dont
know whether its research or thought that goes into using a horse -- you couldnt decide to just
use some other animal. I mean, theres a reason to use a horse. Right?
A Yes. Its the way the pelvis of a horse moves is why I use a horse.
Q And youre doing that within specific either procedures and standards. I mean,
this doesnt seem happenstance, it seems like theres specific things youre looking to do about
using a horse. Right?
A Yes.
Q And we did talk briefly about the website, and youre aware it used to offer
hippotherapy as a service. Correct?
A They still call it hippotherapy. Even when they changed the website, I think it
still states on there hippotherapy, because, like I said, when people like Kaitlyns family want to
search out a place that uses an equine for therapy, it needs to state in there because thats what
theyre looking for, thats how they recognize what its called. Its not necessarily that its right,
and were kind of stuck with that term. I think well be stuck with that term forever, were not
going to get away from it. But I am not a hippotherapist.
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Q So it was always -- whatever it was called on the website or however Rocky Top
was holding themselves out, it was always trained therapists doing therapy with a horse.
Correct?
A Correct.
Q And Rocky Top has always used therapists that have been trained in using a horse.
Correct?
A To my knowledge, yes.
Q Now, isnt it true that with Rocky Top and the American Hippotherapy
Association that theres a belief that its more likely to be reimbursed if you can characterize it as
physical therapy?
A Okay. Let me clarify again, it is physical therapy.
Q Would you agree that -- I dont know, the article was entered into evidence from
the American Hippotherapy Association, I got from your question you werent exactly -- have
you read this article or not?
A Which one?
Q The semantics article.
A I have.
Q Okay, you have read it. So wouldnt you agree that this article is -- the theme of
this article is if you characterize this treatment as physical therapy and not as hippotherapy,
youre more likely to be reimbursed?
A I still do not understand the question, because I am a physical therapist and I
submit -- okay, so youre telling me - -
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Q Let me clarify the question. Can I just clarify the question? Im not asking about
your practice, Im just asking about this article, and this article definitely touches upon
reimbursement, and isnt one of the themes of this article if a treatment is characterized as
physical therapy and not hippotherapy, youre more likely to be reimbursed? Isnt that tone of
the themes of the article?
A I think the theme of the article is exactly why were here today: people keep
calling us hippotherapists, and were not.
Youre telling me that if I put Kaitlyn on a bench in a center you will pay for it because
Im a physical therapist, but I put Kaitlyn on a horse and now Im not a physical therapist? I
mean, you will pay for me in a clinic on a bench doing the exact same thing and because I put
her on a horse, Im now Im not a physical therapist.
Q Your testimony is that the horse provides her a lot more than could be provided in
a clinic.
A Absolutely.
Q Its not the exact same thing, is it, if youre going to go out and walk on the horse?
A Its much better. But TRICARE will pay for me to put Kaitlyn on a bench and
Im considered a physical therapist, but Im not going to bill it as --
MR. BIBBO: But the point is here that we ask you questions, and if you do have
questions for TRICARE, maybe they can be addressed in another forum.
MR. VOKEY: Sir, at this point, weve got people talking over people, and if a question
is asked Id just like the witness to be able to answer the question. Mr. Bibbo can clarify.
MR. BIBBO: I cant hear Mr. Vokey.
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JUDGE HEINY: Mr. Vokey is simply asking that the way well proceed, well ask a
question and then well wait for the answer to it, and that seems to make the most sense.
MR. BIBBO: All right. Thank you. And I think thats just about all I have. Thank you
for your testimony, Ms. Sessums.
THE WITNESS: Thank you. Can I add to it, or no?
JUDGE HEINY: Just a minute.
Mr. Vokey, the person that came into the room, one of your witnesses?
MR. VOKEY: Yes, sir, thats Dr. Acosta.
JUDGE HEINY: All right. Because one thing we didnt identify at the beginning if it
was an open hearing or a closed hearing. Its unlikely that anybody is going to walk into this
room, but it is a federal courthouse which means in the governments system of justice anybody
can sit in on almost any hearing. Unlikely to occur, but could happen, so if somebody comes
into the room that we dont recognize, well address it at that point in time.
MR. VOKEY: Understand.
JUDGE HEINY: All right. Redirect.
MR. VOKEY: Yes, sir.
REDIRECT EXAMINATION
BY MR. VOKEY:
Q Suzanne, it looked like you wanted to add something there at the end. What did
you want to say?
A Well, I wanted to add one thing to what was asked of Jennifer earlier was the cost
of therapy in a center versus the cost of therapy with us. In the clinic that I work at, its $150 per
15 minutes for therapeutic exercise, so thats $350 for the 30 minutes. We charge $80 at Rocky
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Top, and the reason were able to keep the cost down so much is because were a nonprofit
organization and we get lots of donations. So TRICARE actually would pay much more in a
clinic setting than they do at Rocky Top.
Q All right. And as a physical therapist, you have a duty to code correctly when
youre billing insurance companies?
A Yes.
Q And I guess you do code and bill correctly then.
A Yes.
Q And when you do this and you code, youre coding this as physical therapy.
A Yes.
Q And I just want to understand again the physical therapy, shes receiving -- these
things are happening to her on a horse because shes receiving a physical benefit. Correct?
A Yes.
Q This is not cognitive rehabilitation, something dealing with how the brain works,
the neurons in the brain, youre addressing her physical ailments, scoliosis, the tightening of the
muscles. Is that correct?
A Yes.
Q And Mr. Bibbo mentioned that the website for Rocky Top mentioned
hippotherapy and it also mentioned a lot of different kinds of therapy. Does Rocky Top do things
other than what you do as physical therapy?
A Yes . We have counselors and we have therapeutic riding instructors, and a
therapeutic riding instructor basically takes someone with a disability and teaches them how to
ride a horse, so theres no therapy involved there. And the term hippotherapy encompasses
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speech therapy, physical therapy, occupational therapy. At Rocky Top all that we have right now
is physical therapy.
Q Okay. So all youre doing at Rocky Top now is physical therapy.
A Yes.
Q So no therapeutic riding?
A Yes, there is therapeutic riding.
Q Just teaching someone to ride a horse, but thats not what youre doing with
Kaitlyn.
A Right.
Q You are doing physical therapy with Kaitlyn.
A Correct.
MR. VOKEY: Thank you, sir.
JUDGE HEINY: Mr. Bibbo, any additional?
MR. BIBBO: I do just briefly, sir.
RECROSS-EXAMINATION
BY MR. BIBBO:
Q Ms. Sessums, you mentioned the cost of treatment, and just to be clear, are you
aware that TRICARE is not insurance, its a federal benefits program? Are you aware of that?
A Yes, and Im not exactly sure what TRICARE would reimburse, Im just saying
what a clinic charges versus what Rocky Top charges. I mean, if they contracts with TRICARE,
then it would be different at either place, I guess.
Q And while I appreciate that youre a nonprofit agency and you are able to give the
service that you provide at what appears to be a very reasonable cost to the patients involved,
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that TRICARE in determining whats payable under our regulations, are you aware that cost just
isnt a factor? Are you aware of that?
A No.
Q For example, the treatment could be extremely expensive, exorbitantly expensive,
but if its medically necessary and its reimbursable under TRICARE, TRICARE would pay.
A Okay.
Q And its just simply not cost is not something that comes into an equation on
whether something is a TRICARE benefit.
A Okay. Well, we dont set our cost based on any insurance company or what
TRICARE might do, we set our costs based out for the families.
MR. BIBBO: I think thats informative and I appreciate you relaying that information,
and I think thats all I have.
JUDGE HEINY: Mr. Vokey, any additional questions?
MR. VOKEY: No, sir.
JUDGE HEINY: Then I have a few. Lets talk a little bit about your background. How
long have you been a physical therapist?
THE WITNESS: Thirteen years.
JUDGE HEINY: Thirteen years. And so my understanding, and correct me because Im
not always the best at this, on Mondays, Wednesdays and Fridays you work with the Fort Worth
school system providing services to their children.
THE WITNESS: Yes.
JUDGE HEINY: And you go to different schools, its not the same school every day.
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THE WITNESS: Its pretty much the same school, like every Monday Ill go to the same
school.
JUDGE HEINY: So you have a regular schedule but you have a number of schools that
you go between.
THE WITNESS: Yes.
JUDGE HEINY: How many students do you see in a week at the schools?
THE WITNESS: Twelve.
JUDGE HEINY: Okay. So you have twelve people youre seeing on Mondays,
Wednesdays and Fridays. Now, at the schools theyre not going to have any horses.
THE WITNESS: No.
JUDGE HEINY: So youre going to be using the other methods that you use, you talked
about bolsters and walkers and benches and wedges and balls and barrels and whatever they have
in their physical therapy room at the school. Correct?
THE WITNESS: Yes.
JUDGE HEINY: All right. Then on Tuesdays and Thursdays you go out to Rocky Top.
THE WITNESS: Yes, sir.
JUDGE HEINY: And youre there all day?
JUDGE HEINY: How many people do you see a week at Rocky Top?
THE WITNESS: Thirty-two.
JUDGE HEINY: Thirty-two. Now, at certain times Kaitlyn goes to school every day and
she meets with people at school. Do you ever see Kaitlyn? Is she in one of the schools you
visit?
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THE WITNESS: She is not.
JUDGE HEINY: But she would be the type of person that you would see when you go to
your schools.
THE WITNESS: Yes, absolutely.
JUDGE HEINY: And so you see 32 people a week at Rocky Top, various degrees of
assistance you give these people.
THE WITNESS: Yes.
JUDGE HEINY: And then on the weekends you go up to Decatur up to the Wise County
Hospital, and how many people do you see there?
THE WITNESS: It depends on the day. If its inpatient then its just however many
patients there are for that day, and if its outpatient, then it will be a schedule. It varies.
JUDGE HEINY: So they schedule the inpatients and you have a physical therapy room
at the hospital.
THE WITNESS: When I am doing inpatient, I typically do it in their rooms or in the
halls.
JUDGE HEINY: Okay. So you go into the rooms or into the halls, and so most of the
time youre going to be working with walkers and other methods but youre probably not going
to have a ball or a barrel with you at that point in time.
THE WITNESS: Right.
JUDGE HEINY: And obviously youre not walking any horses up and down the halls of
the hospital.
THE WITNESS: Right.
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JUDGE HEINY: So youre providing treatment to a variety of people and some of the
treatment involves being up at Rocky Top where horses are involved.
THE WITNESS: Yes.
JUDGE HEINY: At Rocky Top, what else do they do at Rocky Top? Is it a regular
riding center in addition to the therapeutic?
THE WITNESS: Yes. There is a Rocky Top Ranch and it kind of functions separately,
so theres a Rocky Top Ranch where they use different horses and they do able- body riding
lessons.
JUDGE HEINY: Okay. And so when youre up there you have a certain number of
people, and I take it that of the 32 people you see a week, they each have their set appointment so
youd be seeing one person at five oclock one day and 1:30 on another day.
THE WITNESS: Yes.
JUDGE HEINY: And basically, if Kaitlyn took better to other means or other tools, you
might be using the other tools, such as the barrel or the ball, but apparently she gets bored with
that and shuts down and doesnt get very much out of that.
THE WITNESS: Yes.
JUDGE HEINY: But when shes on the horse, she seems to react more and gets more out
of that and the treatment session can last longer, and her treatment sessions are 30 minutes?
THE WITNESS: Theyre 30 minutes, yes. I would like Kaitlyn to go 45 minutes, but
right now my schedule doesnt allow.
JUDGE HEINY: Okay. But actually its more than 30 minutes because you have the
stretching and the work-up and the walking all done beforehand before she gets onto the horse.
THE WITNESS: Yes.
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JUDGE HEINY: And of course, you dont bill that separately, its not one or the other.
THE WITNESS: No.
JUDGE HEINY: And so basically, its simply your honesty as a professional therapist
that says she was on the horse at this time and we were walking and stretching at this time,
because if she was stretching the entire time and using other methods then likely the Government
would pay, but apparently when she gets on the horse, that being a different tool, the Government
has said we dont pay because shes on a horse. But its only you that makes the honest amount
of each time is doing what. Correct?
THE WITNESS: Yes.
JUDGE HEINY: All right. Let me see. And so Kaitlyn is one of the many people that
you see.
THE WITNESS: Yes.
JUDGE HEINY: And we talked about what else Rocky Top does, and that you see other
patients.
THE WITNESS: Can I say that in the school district, this is what I always say, I do work
in all these various settings and I say this all the time, I get more results at Rocky Top than I do
anywhere else. And Ive even been told in the school district not to say that in the school district
because they dont ever want to have to offer hippotherapy.
JUDGE HEINY: Okay. And if Kaitlyn happened to be in one of your schools, youd
probably be seeing her.
THE WITNESS: I would stretch her, I would put her on a ball, I would do the best I
could, you know, I would try my hardest.
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JUDGE HEINY: Okay. Now, as Mr. Bibbo has quite rightly said, TRICARE doesnt
care what other insurance companies, but some insurance companies pay for this.
THE WITNESS: Yes.
JUDGE HEINY: Does Medicare pay for it?
THE WITNESS: We are not contracted with Medicare.
JUDGE HEINY: And this was the first time you tried with TRICARE. Correct?
THE WITNESS: As far as I know, yes.
JUDGE HEINY: And as far as billing and how much it costs, it really doesnt matter to
you, you do your services, a bill is sent out, and thats simply the way it goes.
THE WITNESS: Yes.
JUDGE HEINY: Okay. All right. But because of the nature of the tool that youre
using, the horse, because of the heat and the way it moves and the fact that people relate to
animals, people get more benefit from that. Correct?
THE WITNESS: Yes.
JUDGE HEINY: The problem, of course, is that TRICARE does not pay for things that
are unproven. In the future this may become common, in the future this may be the preferred
method of treatment, the problem, of course, being is that right now Kaitlyn is between the ages
of 15 and 20 when the most changes are going to be occurring in her body.
THE WITNESS: May I ask?
JUDGE HEINY: Sure.
THE WITNESS: Has a therapy bench been proven?
JUDGE HEINY: That I dont know.
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THE WITNESS: Because this is a tool just like all the other tools that I use. Ive never
seen studies that have done a bolster study, a therapy ball study. Do you understand what Im
saying?
JUDGE HEINY: I understand what youre saying.
THE WITNESS: If they are then insurance isnt denying it because there might be a
study out there on a physioball that says they need more research, its still recognized as a
therapy tool, and thats what this is.
JUDGE HEINY: Yes.
THE WITNESS: So theres research out there because everyone wants to show how
much improvement using a horse can lead to.
JUDGE HEINY: And realistically, with the Wounded Warriors and a lot of other things
and a lot of anecdotal incidents, people probably do really good with that. The problem is that
doesnt change TRICAREs position on it. In fact, if riding the horse actually made Kaitlyn get
up and speak and walk, it really wouldnt change anything as far as TRICARE is concerned
because they have to prove that this is necessary, reasonable and has been proved through the
proper studies, and the fact that it actually does help her and it could greatly improve her life is
anecdotal.
THE WITNESS: Im not understanding why I have to prove my use of a horse but I
dont have to prove my use of a ball.
JUDGE HEINY: I understand your question.
THE WITNESS: Im not seeing the correlation.
JUDGE HEINY: This is just one more tool that youre using.
THE WITNESS: Right.
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JUDGE HEINY: And its a tool that seems to help more than the other tools help.
THE WITNESS: Right. But if I were using any other tool, then it wouldnt be in
question and I wouldnt have to prove it, but because this is the tool that I use, now I have to
prove it.
JUDGE HEINY: Thats right.
THE WITNESS: And I think the confusion becomes because people want to call it a
modality, and its not a modality, its a tool.
JUDGE HEINY: And the thing is that in some peoples mind why should the
Government being paying for a teenager to take horseback riding lessons, but thats not the issue
here, youre not trying to get her to the position where shes going to be riding a horse. Theres
no aspect of horseback riding for pleasure in this case, its merely because of the tool being used
youre helping to stretch her muscles and hopefully prevent her from reaching the point where
surgery is going to be required.
And were all looking at this and trying to decide why one tool as opposed to another tool
is payable and another tool is not payable.
THE WITNESS: Correct.
JUDGE HEINY: The therapy that you do, other than the fact that its not a living
organism, a horse, is a lot of the same thing, youre stretching, youre helping her with her back,
her muscles, and if she accepted it better, this could be done on a bench or on a ball, but she
shuts down on a bench or a ball because its boring. Correct?
THE WITNESS: Correct, and she wouldnt get the three-dimensional movement of the
pelvis.
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JUDGE HEINY: Thats true too, because if youre on a barrel, the barrel cannot move in
three dimension.
THE WITNESS: Theres no rotation to it.
JUDGE HEINY: Okay. Youre a Level 2 instructor. How do you get qualified to be a
Level 2 instructor?
THE WITNESS: Im also a therapeutic riding instructor and I did that first, and thats
just a four-day course and then its a pass/fail thing and you do some testing online, and Id say
60 percent of the people that go do not pass, its pretty rigorous, and you have to do a riding
demonstration and then you have to teach a mock lesson, and thats actually teaching people how
to ride.
Then on the American Hippotherapy Association side of it, they have a Hippotherapy
Level 1 course and thats where you go in and its kind of the same thing, a four-day course, and
then you have a year after you take that course that you are kind of in training for a year and then
you go back and you take the Level 2 course, and again, its all pass/fail testing while youre
there.
JUDGE HEINY: What other organizations, American Handicapped Riders and others,
what other organizations are involved in trying to regulate this because you dont want anybody
to simply go up and throw up a sign that says we help people.
THE WITNESS: Well, the big organization that everyone knows of is called NARHA
and theyve just changed that to read PATH, and Im not sure what PATH stands for. It used to
be North American Riding for the Handicapped Association. And then the American
Hippotherapy Association is kind of under that umbrella of the PATH association. But as I was
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saying earlier, there are centers out there that dont have any of those certifications and theyre
using a horse as a tool without the guidelines of the training that I have received.
JUDGE HEINY: All right. Anything else that needs to come up which hasnt been
asked?
THE WITNESS: I dont think so.
JUDGE HEINY: I know youll get halfway home and say, Boy, I wish I would have told
the Judge that.
Mr. Vokey, questions based on my questions?
FURTHER REDIRECT EXAMINATION
BY MR. VOKEY:
Q Suzanne, physical therapy is a proven, necessary medical technique, isnt it?
A Yes, it is.
Q And physical therapy for Kaitlyn is absolutely necessary, isnt it?
A Yes, it is.
Q And you said of your 30 minutes that you have with Kaitlyn, is all of that 30
minutes riding?
A Probably about 25 minutes of it is actually riding.
Q And the other five minutes is stretching?
A Stretching and walking.
MR. VOKEY: Thats all I have, sir.
JUDGE HEINY: Mr. Bibbo, questions based on my questions?
FURTHER RECROSS-EXAMINATION
BY MR. BIBBO:
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Q I guess one thing that stuck out that I just wanted to kind of clarify or emphasize,
as I understand your testimony, really the three-dimensional movement of that horse is really
distinctive about using this technique. Correct?
A Yes.
Q And thats something that you attribute these what appears to be very positive
results that youre getting for Kaitlyn Samuels.
A Yes, sir.
MR. BIBBO: Thats all I have.
JUDGE HEINY: Is there questions?
FURTHER REDIRECT EXAMINATION
BY MR. VOKEY:
Q Its not just the motion of the horse, its Kaitlyns willingness to actually
participate in physical therapy, thats a big deal for you, isnt it?
A Right. I mean, its all of it that weve been talking about, but whats unique, one
of the things that is unique is the three-dimensional movement, but theres the warmth of the
horse, theres the width of the horse, all of it.
Q And in fact, if you just relied on the balls, the benches, the wedges on that, you
would not get the results of physical therapy from Kaitlyn because she wont engage and she
wont cooperate.
A Correct.
JUDGE HEINY: Mr. Bibbo, anything additional of this witness?
FURTHER RECROSS EXAMINATION
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BY MR. BIBBO:
Q I guess just as a last thing, it is because its a horse. Right? I mean, thats why
youre getting the willingness from Kaitlyn to participate and also some of these results are
because youre using a horse. Right?
A It could be because of the horse, it could be because of the environment, its
constantly moving. You know, if youre stationary somewhere, you might not be as engaged as
if youre moving. Theres people surrounding her the whole session, engaging her, talking to
her, and were moving through space, we go outside sometimes. But Im sure a big part of it is
the horse.
JUDGE HEINY: One last question. Even though it doesnt matter at all to TRICARE
what the cost is, it doesnt cost anything more to have the horses there, that tool, than what it
costs when youre at the hospital or at the school system or at the nursing home during the
summer when school is not in session.
THE WITNESS: It doesnt cost any more to have the horses?
JUDGE HEINY: Well, you dont bill more because you have a horse.
THE WITNESS: No. As a matter of fact, I stated we bill less, much less because we
have so many donations come in.
JUDGE HEINY: Okay. Now, its not a factor in TRICAREs decision what the cost is
because as Mr. Bibbo said, it could cost thousands and thousands a month and if its necessary
and accepted, then TRICARE will pay it. But in this case it doesnt appear that with the
treatment, the mere fact that a horse is involved, youre not charging more because you have to
go out and get a horse.
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THE WITNESS: No.
JUDGE HEINY: Questions based on my questions?
MR. VOKEY: No, sir.
BY MR. BIBBO:
Q I guess just the one thing, the whole question of cost, and as I said before, its not
a factor in how you determine something is a benefit, but as I understand it, Rocky Top gets a lot
of donations which that defrays the cost of maintaining these horses. Correct?
A Correct.
Q I mean, there would be an expense -- there is an expense in keeping the horses,
its just that a lot of that is defrayed by donations of people who are charitable and see the benefit
of Rocky Top.
A Correct.
MR. BIBBO: Thats all I have.
JUDGE HEINY: There being no additional questions, this is an appropriate time to have
you step down.
(Whereupon, the witness was excused.)
JUDGE HEINY: And since weve been going, its an appropriate time to take a five-
minute break. Your witness is here. When we go back on the record, you can proceed however
youd like.
MR. VOKEY: Before we go off the record, I just have labeled as Exhibit E is the video
that Ms. Sessums showed to the Court.
JUDGE HEINY: All right. And Mr Bibbo, youve already got a copy of this. Right?
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MR. BIBBO: I do and I dont have any objection to the video.
JUDGE HEINY: So A through E are admitted.
(The video referred to was marked for identification as Beneficiarys Exhibit E and was
received in evidence.)
JUDGE HEINY: If theres nothing further, its 1:26, this is an appropriate time to take a
short break and then well go back on the record. Thank you.
(Whereupon, a brief recess was taken.)
JUDGE HEINY: Were back on the record. The time is now 1:36. All parties present at
the break are again present.
Mr. Vokey, next witness.
MR. VOKEY: Yes, sir. The next witness is Dr. Fernando Acosta.
JUDGE HEINY: Dr. Acosta, if you can come and sit just in that chair.
Would you please stat your name, spell your last name.
THE WITNESS: My name is Fernando Acosta, Jr., A-C-O-S-T-A.
JUDGE HEINY: Provide either a business or a home address.
THE WITNESS: Cook Childrens Hospital, Fort Worth, Texas is my business address.
JUDGE HEINY: During todays proceedings we do not swear witnesses but we do
draw their attention to Title 18 in the United States Code. Simply put, thats a federal statute
applying to these proceedings which makes it a crime to knowingly and willfully make a false
statement to the Federal Government during the performance of its duties. And you understand
this warning?
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Whereupon,
FERNANDO ACOSTA
having been first duly cautioned, was called as a witness herein and was examined and
testified as follows:
DIRECT EXAMINATION
BY MR. VOKEY:
Q Dr. Acosta, good afternoon. How are you?
A Im all right. How are you?
Q Good.
First, youre a doctor. What kind of a doctor are you?
A Im a pediatric neurologist, and I did two extra years of fellowship training, I did
a year of EMG neuromuscular/neurophysiology training, and then I did one year --
MR. BIBBO: Excuse me. Im having trouble hearing any audio from Dr. Acosta.
JUDGE HEINY: Dr. Acosta, if you can speak loudly into that one and if you sit a little
closer.
THE WITNESS: Both of these mikes?
JUDGE HEINY: Just that one. The other one will pick it up for sure, but thats the one
that makes it loud.
THE WITNESS: So I was saying that Im a pediatric neurologist, board certified in
pediatric neurology as well as adult neurology.
BY MR. VOKEY:
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Q Let me back up. Let me start with your undergraduate degree, where did you go
to school?
A I went to the University of Texas at Austin.
Q And when did you graduate from UT?
A 94.
Q And then after that where did you go?
A I graduated from medical school in 99, so I had one year off between college and
medical school.
Q And medical school also at University of Texas?
A University of Texas Health Science Center in San Antonio.
Q And then after graduating medical school what was the next step?
A So I did seven years of training. My initial two years was pediatrics, and then I
did three years of neurology, twelve of those months was adult neurology and the other part of
that three years was pediatric neurology, and then I did a fellowship in EMG, electromyography
nerve connection studies, neurophysiology, and then I did a one-year fellowship in movement
disorders.
Q Whats a movement disorder?
A So movement disorder is basically any abnormal movement in a patient that isnt
determined to be epilepsy, and its practically impossible to come up with a definition that
excludes the two, but basically, its anything thats really not epilepsy that moves funny kind of
comes under movement disorders.
Q And so youre current at Cook Hospital.
A Yes, sir.
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Q And whats your title there?
A Im a part of the pediatric neurorehabilitation and movement disorder program,
Im the co-director of the stroke program, and I guess at the end of the day Im a pediatric
neurologist.
Q And how long have you been at Cook now?
A I started there in October of 2006.
Q And Kaitlyn Samuels, you know her, shes a patient of yours?
A Yes, sir.
Q And do you recall when she first became a patient?
A No, sir.
Q Youve been seeing her for some time?
A For quite a while, yes.
Q And when I ask you about Kaitlyns condition, kind of tell the Court exactly
whats wrong with Kaitlyn, and Ive got some diagrams if any of them assist you in doing that.
A Sure. So Kaitlyn has a brain malformation that consists of what we call
pachygyria, she has colpocephaly and an absent corpus callosum.
Q Do you also say agenesis of the corpus callosum?
A Yes, agenesis of the corpus callosum, same thing.
Q That means its missing.
A Yes, sir.
So let me start with this. The pachygyria is a term, like pachyderm is an elephant and its
got thick skin, so pachygyria, gyria are the lumps and bumps on the brain and so theres a certain
thickness to these lumps and bumps on the outer cortex, and on imaging we know what normal
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looks like, and then when its thicker than what normal should be, were able to tell that theres a
disturbance in that brain tissue. And so she has pachygyria on both sides, and so that would be
kind of out here and this gray matter that you see here would be a thickened gray matter.
And its kind of counterintuitive because you might think hey, well, more brain makes
you smarter, but our brain actually kind of prunes itself down as we develop and grow and that
helps us kind of fine tune our neurologic function, so its actually a failure of that and probably
some other failures of genes and stuff in how the brain developed when she was developing in
the womb. So thats kind of the pachygyria.
The corpus callosum is this bundle of fibers here. The corpus callosum is basically a
network of connecting fibers between the two hemispheres of the brain, its what helps our right
brain know what our left brain is doing, and vice versa. So if you dont have a corpus callosum,
you can live and you have some bizarre type of phenomenon where its unpredictable because
the halves are essentially disconnected. Theyre not completely disconnected, theres some
information passing through, but its not as efficient as what everybody in this room has, besides
Kaitlyn.
The colpocephaly is referring to the ventricular system. We have a radiator system of our
brain and spinal cord, its called cerebrospinal fluid, it circulates from high to low and we make
it all day long and we resorb it all day long so were constantly turning it over. The
colpocephaly refers to that she has an abnormal appearance of this radiator system or this
ventricular system. Its a sign of that the brain again is malformed, and so its another clue.
Because the best way to know the nature of whats going on in that brain is to take that
brain out, section it and put it under a microscope and look at the architecture of it, but our
patients dont survive that and its something we just dont do. So we take the best technology
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we have, we look at the images, and from this and from time and from studying these things we
can get a good idea of what the problems are and know that shes going to need services long
term or shes going to struggle with development long term.
And so those are kind of the findings on imaging. I think the next question will be what
do those findings necessarily mean, and nobody can tell you to any degree because sometimes
we see some of these brain development malformations and kids have much more function and
ability than you would ever expect by looking at an image, so there can be a disconnect. So one
of the things I always tell my families is were going to look at the image but thats one piece of
the puzzle. Exam, history, imaging, laboratory studies, all those things are all pieces of the
puzzle, so you dont base somebodys prognosis or somebodys entire potential on just an image,
so you use everything.
So this is just one piece of that, but in her case this piece is pretty telling and it tells us
that there is a permanent underlying structural difference in her brain that is responsible for the
problems that she has .
Q Okay. Do we need these anymore?
A I think that should be sufficient, unless somebody has some question about it.
Q So shes got the agenesis of the corpus callosum, the pachygyria, and what was
the third?
A The colpocephaly.
Q All right. So what does that mean? What does that cause in Kaitlyn?
A It tells us that shes wired very differently and probably inefficiently and that
explains the struggle that Kaitlyn goes through in her life and the reason she needs the services.
You cant ascribe exactly certain things to it because, again, youre talking about ultra structure,
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youre talking about the way these neurons are connected and formed and they grew, and youre
talking about a qualitative function and that cant really be measured except for in the patients
function, and we know her function, shes not quite like other kids her age. So you put them
together and you know whats is basically going on.
The best way that I kind of tell parents is, you know, lets say you have a laptop and
somebody goes in there and changes wires and kind of hooks them up different. Now, your
screen may come on, you may be able to get a couple of programs, but its not going to work
quite right but its still going to work. And in these brain malformations you dont know what
youre going to get and you just kind of go with them, and theyre moving targets. I always tell
the parents theyre moving targets, and so you go with what you have and you push them as far
as you can and try to get as much out of these kids as you can, and that furthers their quality of
life and furthers the quality of life of the family.
Q Now, in Kaitlyns case its not simply a matter of things not being transmitted
from the brain, she has some physical problems that go along with it. Is that collateral to
pachygyria or the corpus callosum being missing?
A The physical problems she has are a reflection of her brain condition, so the
spasticity and the abnormal movements and the difficulty moving and all those things, those are
a reflection of the brain not telling her muscles to work appropriately.
A classic example is if I were to check anybody elses reflex in here, if I just kept tapping
your reflex, at some point youre going to stop having your knee jerk because your brain is going
to kind of override that, no, we dont need to keep doing this.
The difference in Kaitlyn is she doesnt make that accommodation, the brain doesnt filter
things as well, and thats why she has a lot of extra movements in things that she does, and the
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tone, and thats why the resting tone is up, because she doesnt have those kind of breaks on the
tone for her body to relax and have, you know, goal-directed smooth movements like you and I.
BY MR. VOKEY:
Q All right. And Mr. Sessums, the physical therapist, was describing spastic in
reference to the muscles. And thats causing everything to get tight. Is that correct?
A So Kaitlyn has a combination of spasticity and dystonia. Spasticity -- theyre
variations of a theme but only movement disorder nerds like me split that up. Because its
different. You have some different treatment lines based on the diagnosis. So Kaitlyn has ability
to move. So she had -- thats the dystonia because she doesnt move in normal patterns. But she
also has some spasticity that is -- the spasticity is just kind of always there and baseline and its
kind of a muscle tone. And that interferes with her function, as well.
Q Okay. So -- and aside from the muscles being tight, we also have an issue with
scoliosis with Kaitlyn, too. Is -- again, is that also a function of the abnormalities of the brain?
A So knowing that Kaitlyn has these brain problems and knowing that her muscles
dont function appropriately because of her brain problems, I sent her to the scoliosis experts
which are either your orthopedic doctor or your spinal surgeons who sometimes are
neurosurgeons. Theyre really kind of the experts in that field.
In reviewing Dr. Grays notes, he calls hers -- which I suspected -- a neuromuscular
scoliosis, meaning that -- so theres some kids that have scoliosis because their bones and things,
the structure, just isnt right. And so they end up having a curvature of their spine.
Kaitlyn -- in Kaitlyns case, a neuromuscular scoliosis is that her muscles are being
inappropriately driven in abnormal ways to twist her spine. So she -- you know, us, with normal
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spine posture, we have a balance of the muscles on each side of our spine that keep our spine
straight up and erect and were not leaning too far one way or the other.
Because her brain doesnt send the correct signals, she has an imbalance of those muscles
and it pulls her spine out of alignment and maintains it out of alignment. And so thats how she
ends up having her scoliosis .
Q So with a neuromuscular scoliosis the muscles are pulling it a certain way. So is
physical therapy necessary in order to keep that spine from being curved and those muscles from,
you know, being worked?
A So back muscles are extremely strong. And its -- it helps. But there are some
cases where the strength is too much to overcome and you may need more than physical therapy.
You may need back bracing. You may need, you know, surgery to correct -- you know, theyll
fuse kids and theyll fuse their spine and then they become rigid and they have no flexibility to
their spine. But if the scoliosis gets too bad, it can interfere with respiratory function and even
gastrointestinal function.
Q Okay.
A So its something thats kind of watched.
Q So in Kaitlyns case physical therapy is a necessary thing to do for her?
A In Kaitlyns case physical therapy is about the only therapy that is going to
continue to improve her function, get more out of her and improve her quality of life.
Q Okay. And you heard a little bit about whats going on. I think you kind of know
what the dispute is here. It says using a horse -- putting Kaitlyn on a horse as part of the physical
therapy. From the -- from a neurologists point of view is there an advantage to using the horse
as a tool vices a ball or a bench or another tool for physical therapy?
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A So I think that the tools that we all use for these kids, whenever we treat kids, I
mean, the tools that we use for kids, I mean, youre dealing with -- I mean, it would be great if I
could learn a textbook, go look at these kids and theyre just -- you know, they let you examine
you, you can do this, you can do that with them. Its -- it doesnt work like that in the real world.
You know, I got to walk in a room and I got to sell that kid that hes going to trust me and
Im -- or he or shes going to trust me. And you do what you can to engage a kid and keep them
engaged. And often times it depends on the kid. So, you know, when hippotherapy may be
appropriate for one patient it may not be appropriate for another patient. But getting these kids
to stay engaged and to do these workouts is probably most of the challenge in a lot of cases.
I have lots of patients that get hippotherapy. And its because its the therapy that these
kids respond to the most. You try to sit them down and make them play with an inanimate object
and youve got one examiner, they get bored, they get frustrated, they -- and its that term, Shut
Down. And I heard that used earlier. And its that, you know, if youve ever had a toddler or a
child, sometimes when theyre done, theyre done and youre not getting anything else out of
them.
And if they have a repeated environment and a repeated routine and they go, Hey, this is
that place where they do those things I dont like -- even in a kid like Kaitlyn she can recognize
environments or she can recognize familiar surroundings. And she can associate bad emotions
with certain things. And so when she sees that pattern coming again its like, Hey, youre -- Ive
done this before, Im not doing it, you know. And so for some kids hippotherapy is appropriate.
For others it may not be so appropriate. There may be other modalities that are better or other
tools that are better.
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Q Okay. Now -- bear with me one second -- (Perusing document.) Now -- and in
Kaitlyns case she doesnt engage or cooperate with other clinical settings of her physical
therapy. Why would that be the case with her - -
A So --
Q -- brain condition?
A So the one variable in here is that you have another living, breathing animal that shes
working with. Thats the variable, you know. Any tool -- youve got physical therapists -- at
least one -- youve got the patient and youve got whatever tool. So youve either got an
inanimate object or youve got a horse. Or a dog. I mean, theres other therapies that engage
animals.
I dont know what the data is. I havent reviewed the literature on hippotherapy. But,
you know, we do know that there are epilepsy dogs out there that are trained to recognize
seizures in kids. We have seeing eye dogs out there. I mean, theres all these instances where we
know that animals are appropriate for people with disabilities. So I dont know what it is exactly
about the horse.
The good things that are about that horse is -- was spoken by fours. You have movement
in any direction. You have her vestibular system being engaged because if shes sitting on
something kind of stationary maybe theres only movement in one or two planes. But in a horse
theres movement in all these different planes. So youre engaging her vestibular system in more
plane than just one or two. Youre engaging her visual system, her visual-spatial system,
especially if they are changing environments, especially if theyre going from inside to outside.
Theres thing that her brain picks up on. People with Parkinsons. Theres a phenomenon,
though that when they freeze they cant move. But if you draw a line on the floor then somehow
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that trips them to step over. And theyre able to get their walk again. So theres many factors in
here that I think are unaccounted for hippotherapy.
And then the one that you also cant underestimate is engaging of an animal and kids.
And, you know, anybody thats seen a kid with a puppy or whatever theres a bond, theres a
connection. And if thats able to pull Kaitlyn out and keep her engaged and keep her engaged for
that 30 minutes or however long theyre doing it, I think thats pretty invaluable. Because youre
getting the most out of that therapy.
And shes getting truncal control, shes getting strength out of it, shes getting vestibular
improvement out of that. Shes -- I assume that shes using her hands to hold on. So youre even
engaging her arms and hands and shoulder girdle. I mean, theres so many things that youre
engaging that I think you just cant get from walking on a balance beam or being in a stander
playing with a ball or whatever. So I think in her case it seems to be a really appropriate therapy.
Q Okay. Thank you. Now, you said -- and for anybody whos had small children and
toddlers know that once theyre done with something, theyre done, they shut down.
A Yes, sir.
Q I want to ask you about Kaitlyn. Jennifer told us a little bit earlier about kind of
her level -- her mental level or capacity of being somewhere in the neighborhood of a -- maybe
its a high infant, a toddler, a preschooler. Your assessment of Kaitlyn, where is she at?
A Shes probably about somewhere -- Id say thats appropriate. Around toddler or
somewhere below toddler or about the toddler level. But thats also in quick visits. I dont see
Kaitlyn all the time. And these kids also have the ability to understand. And the problem is that
she doesnt have control to communicate. So she cant speak and communicate.
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And Im sure her parents see things in Kaitlyn. They can see expressions, they can see
when shes in a good mood, they can see when shes in a bad mood, they can see when they
dont -- when she doesnt like something. Just like we do with kids that we have when we re
younger. Many of us are parents. I mean, you know, you can read your kids, you know your
kid. You know somethings not right. You know somethings amiss. You know theyre having a
good day. Those types of things.
And I think Kaitlyn has enough to at least express basic emotions. And she may
understand things on a non-verbal level that I cant assess in the times -- and, I mean, in those
short visits. But I think its always better to maybe over-estimate the potential a little bit or just
to expect that to give these kids a chance to reach whatever potential they have.
Q Okay. Her -- that mental level that shes at now of being a toddler, is -- in your
opinion is that a factor of why she may shut down working with, you know, a physical therapy
ball or a bench or some non -- inanimate object? Or any idea why she shuts down with those
other tools?
A One of the most impossible things that I always -- people always have me do is
predict. And, you know -- and so youre asking me to interpret her -- a human beings behavior.
And I cant read her mind. But Kaitlyns made progress over time in my therapies and with these
physical therapies. And weve seen progress out of Kaitlyn. So -- Im sorry. I missed the
question. I didnt answer your question.
Q Thats all right. So well pick it up from there. You said youve seen progress in
Kaitlyn.
A Uh-huh.
Q Is that with the physical therapy shes been receiving while riding a horse?
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A She has improved movements of her arms. She has improved truncal control,
even though the scoliosis is getting worse, you know. So, I mean -- and you see gains over time.
You see improved abilities to do things with her hands over time. So --
Q Okay.
A -- she has the ability to learn some things. Where that ceiling is, where that
potential is nobody knows.
Q Okay. Hold on one sec. (Perusing document.) The agenesis of the corpus
callosum -- pretty rare disorder or condition?
A Uncommon. I dont know if it meets the diagnosis of rare. I mean, theres a
specific diagnosis for that. And Im not familiar with the numbers. But its uncommon. I dont
see it very often in my practice.
Q Okay. And looking here, one study said that they found 630 cases of -- among
3.5 million live births. That sound about right with what you know about agenesis?
A Sounds about right, yes.
Q Okay. All right. Dr. Acosta, is there anything else about Kaitlyn that I havent
asked you about that might help the Court make its determination?
A Nothing I can think of at this time.
Q Okay.
MR. VOKEY: Sir, those are all the questions I have.
CROSS-EXAMINATION
BY MR. BIBBO:
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Q Good afternoon, Dr. Acosta.
A Hello.
Q So weve heard about the agenesis of the corpus callosum that Kaitlyn Samuels
suffers from. As -- I do have a note from you in the file that mentions hemiplegic cerebral palsy.
Now, is that accurate that she suffers from that condition, as well?
A Shes actually quadriplegic because all four limbs are involved. So -- but on
exam she has more hemiplegic symptoms. And then the entire body has some dystonia. So all
four limbs are effected.
Q And I guess what -- I do have a note from you in the file that talks about
hemiplegic cerebral palsy.
A Could I --
Q I mean, is that --
A Could I review the note?
Q Is that an effect of the condition?
A Its an effect of her brain. Its not an effect specifically of agenesis of the corpus
callosum.
Q Okay. Now, Im just trying to clarify that as of -- in January 19, 2001 you wrote a
note that said --
A May I see the note?
Q -- you were seeing her for this --
A May I see the note?
Q Yes. Its in Exhibit 14, page 3.
MR. BIBBO: If you can show it to the doctor, please?
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JUDGE HEINY: Sure.
Exhibit 14 -- Exhibit 3.
THE WITNESS: Is it okay for me to -- (Perusing document.) Okay.
BY MR. BIBBO:
Q So is -- Im just trying to get an idea of, you know, clarifying the condition and
what you, you know -- you know, how -- you know, what you were seeking or recommending
the treatment for. I mean, how does this -- so what you are testifying to - - how does the
hemiplegic cerebral palsy relate to her condition?
A So all of her movement and all of her condition is -- pretty much relates to her
entire brain condition. So I guess to be more complete I should have put agenesis of the corpus
callosum plus the pachygyria plus the colpocephaly. So its not entirely correct. And, yes, I
know my signatures on it.
Q Okay. Is it -- would it be fair to say, you know, she suffers from a neuromuscular
skeletal dysfunction?
A Dysfunction? Yes. But not a disease or condition. But, yes, dysfunction. Yes.
Q So --
A But the neuromuscular dysfunction is born out of the brain function that is not
proper.
Q So based upon that condition, you know, you recommended hippotherapy.
Correct?
A Yes.
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Q And, you know, as I see, this note here you say, Please approve her hippotherapy
visits as this is an improved therapy for cerebral palsy. So its your personal opinion that -- or
your professional opinion that hippotherapy is approved for cerebral palsy?
A Yes.
Q Or, you know, it -- for Kaitlyn Samuels condition. Correct?
A You know, actually, this doesnt say who approves it. So I guess I approve the
hippotherapy for her condition. I dont know that -- if youre talking about approval -- youre
talking about insurance approval. And if youre using insurance to --
Q No, no, no, no.
A Okay.
Q Im -- no. Im not talking about insurance approval.
A Okay.
Q Really, as a physician, you believe its --
A Yes, I have many patients that get hippotherapy and they benefit from it.
Q And in your professional opinion its a safe and effective treatment for these
conditions?
A In properly trained hands, yes.
Q So you wouldnt send a -- someone to -- you know, you would want to be sure if
you were going to send a patient for hippotherapy that the person doing the hippotherapy was
well trained in using a horse. Correct?
A We always do, yes. We send them to approved hippotherapy centers, yes.
Q It would be -- it would probably be unthinkable to just send them to someone who
was untrained in using a horse to try to achieve those results. Correct?
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A If I was aware that I was sending a patient somewhere that they did not have the
proper safeguards in place for hippotherapy I wouldnt approve it.
Q And in your opinion for Kaitlyn Samuels you believe that the hippotherapy was
going to give a lot more benefit than standard physical therapy. Correct?
A In Kaitlyns case it was proven and communicated to me that it was a better
therapy for her. And I have other patients that are in the same kind of position where they dont
respond to the normal tools in physical therapy. And again, something about the animal and the
horse and the whole thing, they do much better.
Its also really a better therapy for posture, for the back posture and the kind of problems
that she has. Its also a much better therapy for that because the horse is moving and theyre
constantly -- have to maintain their balance and their posture. And so in some cases where we
have kids with very poor truncal posture or poor trunk tone or poor back, you know, posture its a
excellent therapy in those cases.
Q And so when you send a patient for hippotherapy youre looking for those
specific things that youre talking about right there. Correct?
A Usually the way that my patients get a round of hippotherapy - - I dont -- its not
the first modality or the first thing that I say, Hey, were going to send you to hippotherapy, it
works; Were going to send you to physical therapy. Then what tends to happen is if they have a
physical therapist that is aware of hippotherapy and they see the gains these kids are making but
say, You know what, I think theres another therapy that may be more appropriate, lets consider
hippotherapy. And thats generally how it comes to me. And then it will come across my desk
that, you know, this family would like to try hippotherapy.
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And generally, in my experience is that the insurance companies will pay for PT. And so
they wont pay for, I guess, what you want to call traditional PT where youre in a gym and they
wont pay for hippotherapy but theyll pay for one or the other in my experience. And these
letters that we put together in my clinic -- theres 11 of us in the clinic. And we have an active
movement to start a program. And these types of things are important.
And so I didnt read it myself but I remember my partner telling me that hippotherapy
was actually an approved therapy for cerebral palsy. And so thats why I would have signed off
on this letter, even though I didnt put her entire condition on here.
Q Okay. Well, I appreciate that. I think thats all I have. Thank you, Doctor.
A Okay.
JUDGE HEINY: Mr. Vokey?
MR. VOKEY: Nothing further.
JUDGE HEINY: Okay. I have just a few questions.
I do appreciate you being here. You provide insight that I can get from no other source.
And thats greatly helpful.
THE WITNESS: Youre welcome.
JUDGE HEINY: There was a period in Kaitlyns life where she was receiving therapy
and then there was a number of months that she didnt receive therapy. And her scoliosis, which
youd know more about than I will ever hope to know anything about, changed from 31 degrees
to 40 degrees. What does that mean?
THE WITNESS: So you measure it by the convexity of the curve. So -- and I would --
maybe thats about 30 degrees, thats about 40 degrees. So it just means that the angle has, I
guess, become more acute.
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JUDGE HEINY: So zero degrees would be straight up and down?
JUDGE HEINY: Ninety degrees youd be bent in half?
THE WITNESS: Ninety degrees you probably wouldnt be alive.
JUDGE HEINY: Thats right. Because as you bend over more it affects your breathing,
your eating and then --
THE WITNESS: It --
JUDGE HEINY: -- all the organs get pushed --
JUDGE HEINY: -- together.
THE WITNESS: And it can even affect your heart function because it can start -- your
big aorta, your big vessels, it can start to pinch on those two.
JUDGE HEINY: Okay. So everything gets -- the scientific term being -- mooshed
together.
THE WITNESS: I like that term.
JUDGE HEINY: So everything gets pushed in. Okay. So Kaitlyn needs some type of
therapy.
JUDGE HEINY: And when she has therapy it slows this and it also improves her muscle
tone.
THE WITNESS: Yes, sir. I believe it does.
JUDGE HEINY: And if there is no therapy and there is no improvement whats likely to
happen to her?
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THE WITNESS: Shell probably look more like a pretzel than she does already.
JUDGE HEINY: Okay. So theres some fusion that be done, some other things.
THE WITNESS: Yes. So the -- again, to -- a little bit out of my league talking about the
ortho, but reviewing Dr. Grays note hes talking about fusing her from stem to stern, to use
another, you know, non-medical term, but basically from neck to lumbar. So that takes any
flexibility out of her back. And shes basically -- I mean, shes -- its like a rod back there. You
know, it will help the problem and it will fix some of the, you know, the problems -- it may avoid
some of the problems with her of the organ -- you know, organs being scrunched or mushed --
JUDGE HEINY: Uh-huh.
THE WITNESS: -- but, I mean, if you could think about if somebody locked you in one
position how uncomfortable that you would be that you would never be able to move to adjust or
to find a more comfortable position and youre basically moving -- I mean, shed like be in a
perpetual backboard.
JUDGE HEINY: So unlikely to be walking?
THE WITNESS: Unlikely to be -- well, it would probably make it a little more difficult
because she wouldnt have any flexibility in her spine. So she -- it would basically -- by -- you
know, if youve ever held a broomstick on your hand and kind of balanced it she would have that
kind of -- it would be in mass. She would be trying to balance her trunk in mass. And that
would -- if she tips one way too far the other -- I mean, she doesnt have the muscle strength
now. Shes definitely not going to have the muscle strength to catch herself if she tips one way --
JUDGE HEINY: Okay.
THE WITNESS: -- too far.
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JUDGE HEINY: So now if they fuse it and its like a broomstick up her back thats not
going to have any effect on the muscles that are still pulling one way or another.
JUDGE HEINY: Thats still going to continue.
THE WITNESS: Except it will be pulling against something stronger and harder.
JUDGE HEINY: Thats solid more solid.
THE WITNESS: Right. So what will actually -- the potential of that is that if youve
ever woken up with a crick in your neck and you know -- I mean -- and I have one right now so
its probably -- but it just bothers you all day long. So now you made a rigid spine. And now
you have these muscles attached at the top and the bottom on each side. And now that muscles
constantly pulling against that rigid spine thats not giving at all. So shes -- eventually have -- I
mean, essentially have a crick of her entire back.
JUDGE HEINY: Okay. Now, youve seen Kaitlyn over two, three years or so.
JUDGE HEINY: And shes received physical therapy. And how is that progressing?
THE WITNESS: Hows the physical therapy progressing?
JUDGE HEINY: Yes. What have you seen, as far as effects on her.
THE WITNESS: So a lot of it I have to rely on the parental reporting. Because I dont --
I cant see these kids every month because --
JUDGE HEINY: You only have a limited amount of time when theyre in the office.
THE WITNESS: Correct. But in Kaitlyn I think Ive seen a little bit more awareness
each time she comes in, a little bit more engaging, a little bit more aware of kind of whats going
on. Ive done botox on her to try to loosen up some of those muscles and buy time and maybe
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kind of reset things. Because sometimes botox can do some amazing things that I cant predict
again.
JUDGE HEINY: Uh-huh.
THE WITNESS: And so that -- some of that may occur if she got nothing. But that is
helped along and accelerated and it gives her the best potential to reach whatever her potential is
by continuing physical therapy. So theres --
JUDGE HEINY: Okay.
THE WITNESS: -- progress made by it.
JUDGE HEINY: So continuing therapys the best chance shes got.
THE WITNESS: Yes. So -- but Im a movement disorder specialist. And I spend a good
deal of my day trying to help kids move better and improve their quality of life through that by
meds and botox and bracing and therapies.
But often times in my clinic youll hear me tell the families -- you know, when a kid
doesnt have seizures or other neurologic conditions, Im like, You just need to see me once a
year, keep them in their therapies, thats more important than anything else. If youre going to
expend your resources expend your resources on the therapies and come see me once a year so I
can keep signing off on your therapies. And in -- truly, in those cases the most important people
outside of the family are the therapists.
JUDGE HEINY: Okay. Anything I need to hear that hasnt come up?
THE WITNESS: Well -- so I dont know the literature in the physical therapy arena. It
was my understanding that I was told by our group that hippotherapy is an approved therapy for
cerebral palsy. And we were excited. Because I think thats a recent development in the last
couple -- few years. The challenge in these kids is to engage them and keep them engaged.
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Because I also manage the inpatient neuro rehab unit at Cook Childrens. And those kids
are supposed to get about three hours of therapy a day. And sometimes its a challenge to get a
kid thats already got a bad brain that will have behavior problems with that, to get them to
engage and stay engaged. And when you cant do anything with them they cant make any
progress.
And so if you can find something, whether its a therapist thats really funny and make --
and interacts with the kid and that kid personality-wise likes that therapist or youve found
something that -- with lights and bells and whistles and the kids really into it -- its whatever you
can find. Because I always caution my families that once that kid shuts down its hard to get
them back.
And if anybodys had a two or three year old shut down you know. Anybody whos been
a parent knows we cant make kids do anything they dont want to do. So in that case I think
each case has to be considered case by case and really, Is this appropriate and right for each
child.
JUDGE HEINY: So the best therapy in the world, if the persons not going to use it, is of
no value.
THE WITNESS: Exactly.
JUDGE HEINY: Okay. All right.
Questions based on my questions?
MR. VOKEY: No.
JUDGE HEINY: Mr. Bibbo, questions based on my questions?
MR. BIBBO: No, sir.
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Did I get that piece of paper back?
JUDGE HEINY: Thank you for being here today and providing information I can get
from nobody else.
THE WITNESS: Thank you, Your Honor.
JUDGE HEINY: All right. Your next witness?
MR. VOKEY: Yes, Your Honor. I didnt know if you wanted to take a break or just
drive forward.
JUDGE HEINY: Lets drive forward.
MR. VOKEY: Very well, sir. Call Mark Samuels.
JUDGE HEINY: Captain, if you could have a chair just there. Please state your name,
spell your last name.
CAPTAIN SAMUELS: Yes, sir. Its Mark Samuels, S-A-M-U-E-L-S.
JUDGE HEINY: Provide either a business or a home address.
CAPTAIN SAMUELS: 9904 Eddleman Court. Thats in Keller, Texas 76244.
JUDGE HEINY: And youre Kaitlyns dad?
CAPTAIN SAMUELS: Yes, sir.
JUDGE HEINY: As you heard earlier, we do not swear witnesses but we do draw their
attention to Title 18 of the United States Code Section 1001 making it a crime to knowingly and
willfully give false testimony to the federal government.
Whereupon,
CAPTAIN MARK SAMUELS
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having been first duly sworn, was called as a witness herein and was examined and
testified as follows:
JUDGE HEINY: And you understand that?
THE WITNESS: I understand, sir.
DIRECT EXAMINATION
BY MR. VOKEY:
Q All right. Captain Samuels, find out a little bit about you. Where are you from?
A I grew up in Youngstown, Ohio. Pretty much just middle class average
background. Graduated from high school and went to the Naval Academy straight out of high
school. So thats where my Naval Tri got started.
Q Okay. And so when did you graduate from the Naval Academy?
A 1989.
Q All right. And so after the Naval Academy what did you do?
A I went down to flight school. Bounced back and forth between Pensacola, Corpus
Christi for the flight training that pilots go through. And then from there off to Jacksonville
where I -- the first aircraft I flew was a P-3. So that -- the main training site for P-3s is in
Jacksonville. So I was there for six or eight months for that.
Q Okay. So after you received your flight training where was your first duty station
as a pilot?
A After I left Jacksonville went to Brunswick, Maine and did my tour flying P-3s
up there for about three years.
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Q Okay. And then back up. So you were at Jacksonville, then went to Brunswick.
Correct?
A Correct.
Q And its when you were in Jacksonville is when you met Jennifer?
A Thats when I met Jennifer. Correct.
Q Okay. So then off to Brunswick. Jennifer followed you up there?
A She did.
Q And you were flying P-3s.
A P-3s.
Q And then you guys were married in when?
A In July of 1993. So wed been up there maybe two years.
Q Okay. And you -- so you left Brunswick when?
A Left Brunswick in September of 94 and went down to Corpus Christi as a flight
instructor in Corpus Christi.
Q Instructor in Corpus Christi.
A Correct.
Q And how long were you there?
A We were there for a little over three years because we left at the end of 97.
Q So it was while you were at Corpus Christi is when Kaitlyn was born there?
A Yes, sir.
Q And I think Jennifer testified that it was at about the four to six-month mark that
you guys noticed there was something wrong.
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A I think she noticed far in advance of anyone else. You know, my -- not having as
much experience with kids and just, I guess, being a dad my initial reaction was she was over-
reacting. But she seemed to think, No, somethings going wrong. And even when we went to
the doctors they were kind of all in the same boat of, you know, they didnt think -- Jennifer --
like Jennifer said, they really didnt think much was going on there. So she kept -- she knew.
She was -- shes Kaitlyns mom. She knew. And so they did the MRI in about May of 97, I
believe -- spring of 97. And the results came back on the MRI with an agenesis of the corpus
callosum and all the brain abnormalities from there.
Q Okay. So you find out in the spring of 97 that you have agenesis of the corpus
callosum. Whats that do to you guys? I mean, its got to have a huge impact.
A It -- well, it changes your life, obviously. But it changes Jens life more than it
changes my life. My life -- you know, shes the primary care giver for Kaitlyn. And -- have to
be careful not to get choked up here. An incredible mother. An incredible woman. It changes
her life significantly. Because the bulk of Kaitlyns time is with Jennifer.
You know, Im out immersed in my career and trying to make sure I do everything the
Navy wants me to do to stay promotable. So -- but it does change your life. And we didnt plan
to have a child with special needs. But at the same time, as a parent your goal is to make sure
that you provide the highest standard of care and the highest quality of life for your child as you
can. Whether theyre special needs or not, your goal as a parent is to care for your child and
make sure theyre happy. So thats -- we just had more -- a different path to get there with
Kaitlyn than an average parent would.
Q All right. And I understand it definitely changed Jennifers life more than yours.
But it did change your life and your career a bit, as well, didnt it?
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A It did. It had an impact on my career. I was fortunate in my career that I had
superiors that were looking out for me and making sure they put me in the jobs that I needed to
stay upwardly mobile in my career. But certainly, there were several times where detailers --
those are the people that write our orders to decide where we go -- would say, No, you cant go
there. Brunswick, Maine -- when we went back to Brunswick the second time being one of
them. But that was where the Navy needed me and thats where my bosses needed me. So we
had some challenges with that.
Like I said, fortunately, my superiors always -- they went to bat for me and pulled -- you
know, did what they needed to do to make sure that I got in the jobs that I needed to have.
Q Okay. Now, after Corpus, December 97 you actually switched to the TAR
program. Right?
A I did. It was called Training Administration in the Reserves. Theyve changed it
now, called full-time support. The career path in P-3s would have been for me to go out to a
ship, be a shooter. For those that have seen the carrier on TV its always the guy in the yellow
jacket that kind of launches the airplane.
With -- we didnt know exactly what we were dealing with with Kaitlyn. So it wasnt the
right time for me to be gone extended periods of time. We didnt know if what she had was
going to be life-threatening. So I made a decision to apply for the TAR program which is
essentially you stay on active duty with the military but you work with the reserves. And so I
switched aircraft to C-130s flying transport aircraft for the Navy. And frankly, it was a
wonderful move for us, both from a quality of life standpoint, but there was -- its -- it offered me
the same career opportunities of moving forward, becoming a commanding officer as staying in
the P-3 community would have. So --
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Q Okay. So after switching to TAR where was your next duty station at?
A We went to New Orleans. It was our first place.
Q And what was your job there?
A I was a squadron department head and flying C-130s. As squadron department
head I managed an Ops department, Operations Department, which basically was the worldwide
global employment of this aircraft. I was also the administration officer there. And I was also
the -- we call it a NATOPS pilot. Its essentially -- I was the check pilot that gave all the other
pilots their check rides --
Q Okay.
A -- safe for flight check rides.
Q All right. So after New Orleans where did you go?
A From New Orleans we came here to Fort Worth. Worked here in Fort Worth. The
staff that manages all the Navy C-130s is located here in -- at the old Carswell Air Force Base.
And I was the -- I was -- in the squadron I was a NATOPS instructor, where I gave check rides to
the squadron pilots. Here I gave check rides to the instructors that would give their qualification
check rides to the squadron pilots.
Q Okay. All right. And so how long were you here at Fort Worth the first time
then?
A Two years.
Q Two years? And so when did you leave?
A About 2004.
Q All right. So you left here and where did you go from Fort Worth?
A We went up to Brunswick, Maine.
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It was our second tour up there. And I was officer in charge of a C-130 squadron there in
Brunswick.
Q Okay. So youre -- Brunswick I think I had down from 2002 to 2004?
A That would be correct. We were here 2000 to 2002. Because we were here for
9/11. So we were in Fort Worth. So it was 2002 to 2004 --
Q Okay.
A -- in Brunswick. Im sorry. I mis-spoke.
Q So back to Brunswick in 2002. And what was your job there?
A I was the officer in charge of a C-130 squadron up there --
Q Okay.
A -- that was stationed in Brunswick.
Q From Brunswick where did you go?
A Brunswick? We went down to Washington, D.C. I did a tour at the Pentagon
working in the Air Warfare Division, which was essentially requirements planning for buying
what aircraft the Navy was going to buying. And the following that tour at the Pentagon I rolled
over to the Navy side of Andrews Air Force Base and I was commanding officer of a squadron
there that flew Gulfstream 4s.
Q Okay. Now -- so at this point -- so now were talking about -- were -- what year?
2006 or so youre at Andrews?
A 2006 I got to Andrews and left there in August of 2008.
Q Okay. So from -- when Kaitlyn was born -- we are -- were talking about from
when Kaitlyns born till when you get done with Andrews youre talking about 12 years old
Kaitlyn is. About 12 years.
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A Correct.
Q Is that right?
A Correct.
Q So every time you switch duty stations what does that do for medical care for
Kaitlyn?
A We start all over again. We have to find the pediatric neurologist, another
pediatrician. Jen spends a lot of time getting the pediatrician up to speed on what her condition
is because its obviously a little more involved than just a normal child walking in with a stuffy
nose every now and then. Then you go off to get all the other specialists, the orthopedists, you
know, for the scoliosis and things like that. So every time we move, which was one of the
reasons why we wanted to come back here to Fort Worth was because we had previously
established a relationship with doctors.
But you start all over again. Youre in a different Tricare region. And as much as thats
supposed to be standardized, it isnt. Humana operates very differently in the south region than
Health Net does up on the east coast. So you start all over with the specialists. They review
records. We carry medical records. But really, Jen is the conduit in making sure that information
is there.
Q Okay. So after Andrews Air Force Base where did you go next?
A Then we came back down here to Fort Worth.
Q And so that was in 2008?
A End of 2008. Correct.
Q Okay. And what did you do when you first arrived here?
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A I was the chief staff officer on the same wing staff where I had worked previously.
I was there as the chief staff officer, which essentially meant I managed all the department heads
and whatever my boss, the wing commander, needed to be taken care of.
Q And whats your current billet?
A Im now the commanding officer of the -- they call it the Naval Operational
Support Center. Its a fancy name for a Navy Reserve center. But theres a reserve center --
Navy Reserve center here in Fort Worth. Its the third or fourth largest in the country, depending
how manpower shifts around. But provide -- I manage a staff that provides oversight for 1,900
Navy Reservists.
Q All right. So whats next for you after this tour as CO of the NOSC?
A Ill be retiring in August of 2013.
Q You are -- you at the point where you cant really advance any further?
A One of the career consequences of me choosing to re-tour here in Fort Worth was
that essentially that was the end of the road. I mean, theres certain jobs you take that keep you
upwardly mobile. And my jobs a valuable job. They need somebody to do it.
But the next logical career step would have been to go to either D.C. or Norfolk and serve
on a major staff working for -- working directly for an admiral. I chose not to do that. I have no
regrets for choosing to do that. My bosses understood why I wanted to do that. But there are
consequences for that. So the people that took those jobs, theyre the ones that are -- that have --
will remain competitive to keep moving upwards.
Q Okay. So what -- when is retirement coming then?
A August of 2013.
Q Okay. And any idea what youre going to do after that?
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A No. I mean, I would like to go out in the airline industry. But obviously, thats a
very tumultuous area now. So well see whats out there. I mean, maybe some corporate pilot
jobs and things like that. But -- and then, you know, perhaps my experience as a captain in the
Navy and a leader would allow -- would make my skills as a manager marketable out in the
business community, as well. So those are all things Im looking at on the outside.
Q Okay. Now, I want to do -- first, I want to do -- something was addressed earlier
testimony, I think, during Suzanne, when she was testifying, about Medicare and Medicaid as it
relates to the uses of horses for physical therapy. And you had something to offer. Can you tell
us about that?
A Well, Medicare my understanding -- and not being an expert in this field at all,
Medicare is for people 65 and older, Medicaid is a similar government- funded benefits package,
insurance package -- I dont know the semantics there -- for people 65 and under. According to
the web site for the State of Texas for Medicaid, hippotherapy, if you want to call it that, physical
therapy on a horse is covered under Medicaid in the State of Texas. Now, whether its covered in
that in all states I dont know. But I know that as a member wearing this uniform it troubles me
that the standard of care for the services for my family would be higher if I was on Medicaid as
opposed to honorably serving my country and wearing a uniform under the standards of Tricare.
That bothers me.
Q All right. Now -- and weve heard kind of Mr. Bibbos position on this. And it
sounds like Tricares position that this is hippotherapy and it should not -- they should not bear a
cost of the share. In your case right now I guess you may be in a position where you can pay for
a lot of the stuff yourself as a Navy captain.
A Yes, sir.
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Q Now, if you got other sailors, say an E-4 and E-5, who may have a -- who may be
married, have a special needs kid, maybe other children, as well is he going to be able to -- if he
had someone just like Kaitlyn would he be able to bear the cost of this?
A No. They wouldnt -- and they wouldnt be here today, either. I dont want to
make it sound like Im on a crusade. But I am -- Im glad that were fortunate enough that we
can bring this issue through Tricare. Because the way this played out on us was we submitted
bills and paperwork as Jennifer and Suzanne testified, indicating our intent with Tricare when we
got here to Fort Worth in -- you know, Im going to say early 2009 timeframe.
Those claims were accepted by Tricare and paid for over a year. We never held anything
back from them. When the claims came back we submit with more information. We gave them
more information. There was nothing hidden or deceptive in any of that.
At the end of a year they -- we went through about a five-month transition period from --
as Jennifer mentioned, from about January of 10 to about May of 2 010, where they werent
outrightly denying the claims but they werent really processing them. And then about June of 2
010 Tricare -- the claims starting coming back denied and we started this process of appealing
the decision.
Right out of the gate, as soon as those denials came Tricare reached back 16 months and
collected back pay. Now, that payment was in the amount of -- because they had stopped paying
in December of 10 -- it was only about $700. Its not a grand lot of money.
But the principal of the thing that Tricare -- the people processing these claims at
Humana, theres no culpability for their failure to read and acknowledge whats going on. And
the amount of how they contributed to -- we -- you know, if they had said, Hey, this isnt a
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covered service based on what youre doing, we would have this argument then. But they looked
at the material.
We have to assume when we present material that they read it and process it. They
approved the claim. It just seems awfully convenient that 14 months later when somebody says,
No, we dont think this is covered, that theres an indefinite amount of time, a safety net that they
can reach back and say, Oh, it was incorrectly billed. Well, I dont think it was incorrectly billed.
I think it was incorrectly processed.
Q As a matter of fact, the bills -- it was billed as physical therapy on equine.
A It was, sir, yes.
Q And the codes used were physical therapy codes.
A Because she was working with the physical therapist.
Q Okay. Now, I kind of sense that this makes you a little bit angry, Mark. Is that
right?
A You know, angry? Im passionate about it because, like -- as you touched on, Im
not on a crusade here. My goal here today is to represent Kaitlyn and the interests of my
daughter. However, Im also a senior officer. And I know that if Tricare reaches back and grabs
$700 off of that junior sailor or junior marine thats taking food off of their table. And so I -- Im
not as angry about the dispute for being here. Im angry about the process that Tricare operates
under. Maybe even more -- or at least as much. But my focus today obviously, is for Kaitlyn
and my daughter.
Q Okay. (Perusing document.) And looking through the -- all the Tricare exhibits,
the Government exhibits, there was a number of letters that came from you that you actually
wrote in to Tricare trying to explain what was going on. Is that right?
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A Well, Jennifer and I both wrote them, yes.
Q So does Tricare take up a extraordinary time of your life?
A Theyve taken -- its -- you almost need a full-time accountant under Tricare. But
perhaps thats the same for any parent that has a special needs child. I mean we have files of
EOBs that -- and we dont save them for much more than two or three years at a time. But the
end of the year her file of EOBs will be a stack of paperwork. Just another thing that Jen, as a
wonderful mother, kind of takes care of, sorting and filing through all those and tracking that.
But it is -- you know, its something in our lives that probably other folks dont deal with.
But I dont -- other than the disputes, I dont know that other folks would -- I cant say what its
like without Tricare. I dont know anything different than that. So maybe thats just the nature
of the beast when youre claiming benefits or insurance claims or whatever were calling them.
Q Okay. Now, is there -- right now youre getting -- youre being covered under the
grant from the State of Texas, the Texas Veterans Commission --
A Yes, sir.
Q -- thats covering Kaitlyns physical therapy at Rocky Top right now. Right?
A Correct.
Q Now, as you move around is there other ways to get assistance for this kind of
physical therapy?
A Well, when we were in Brunswick -- now, in Brunswick there was a therapy
center she rode at in Brunswick. She wasnt usually with the physical therapist, although they
had that capability there. But in Brunswick when we first started going there she wasnt riding
with the physical therapist. We considered that recreational riding. That was an expense we
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bore, gratefully so. You know, we werent going to claim something without a physical therapist
against our insurance.
And as we -- we hadnt been there but a couple of months, I got a phone call and I -- Jen
may remember the name of the agency. But it was a veterans group up there in Maine called
and said, Hey, we heard youre going to this riding therapy center and wed like to pay for your
daughters riding. And I -- my initial thing was I -- theres probably -- I appreciate that, but
theres probably other folks out there that are more financially in need of the money than we
were. At that time I was a lieutenant commander, in 04. And the gentleman said to me, Well, if
youve got names forward them off. So there are agencies out there that have paid for this in
different circumstances in the past.
Q Okay. Now, aside from Kaitlyn, who is 15, you have two other children? Is --
A We do.
Q If I remember, Danielles 11 --
A Danielles 11.
Q -- Jake is eight?
A Jake is eight.
Q All right. And what about Danielle and Jake? How do they get along with
Kaitlyn?
A I -- you know, I -- as far as any sibling rivalries go, I mean, thats probably about
as good of a relationship as kids can have together. I mean, they understand her needs. Theyve
grown up knowing that she has special needs and theyre -- for the most part, you know, theyre
always tolerant of those needs. And for the most part, theyre generally pretty understanding.
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Occasionally theres times where maybe we cant do things that other families are doing
or we have to tailor the way were approaching things because, you know, we try to bring
Kaitlyn with us on as many things as we can and make sure that all of our children have as much
of a normal life as possible. As our other two have gotten older sometimes they -- theyre a little
sensitive to those changes that we cant just maybe pick up and go as quickly as somebody else
can.
Q Okay. (Perusing document.) All right, Mark. Thats all the questions I have for
you. Is there anything else that youd like to tell the Court while Ive got you up there?
A No, sir. Other than, you know, theres been a lot of talk about cost today. I know
Mr. Bibbo said, Hey, our decisions arent based on cost. And I understand that. But I also know
cost plays a factor in everything. When weve done this billing with physical therapy on a horse
or physical therapy in a traditional clinical setting the cost to Tricares the same.
Its still billed as a 15-minute time. Its usually billed as two 15-minute time increments
that total up to about -- its -- it varies from year to year. But 25 to 30 bucks a session. So youre
talking 50 or 60 bucks for the -- 50 or $60 for the 30 - minute session. Thats regardless of the
setting. So whether its set in a traditional therapy setting or at Rocky Top the billing is the same.
So as a steward of the taxpayers money if its more beneficial to use the horse as a tool
than it is to use a therapy ball or a wedge or anything else as a tool why would I waste $60 of the
Governments money paying for the therapy in a traditional setting when I think as its been
stated over and over today, its more beneficial to spend that $60 somewhere else.
And, yes, there should be safety limitations. Those things are easy controls that are put in
to regulate any place thats providing this type of services. Thats what leaders and managers of
programs do. The additional cost -- and it may be more expensive to go Rocky Top. Right -- or,
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you know, Rocky Top said theyre fortunate to get a bunch of grants and things. It may be all --
at some riding centers that provide a similar service it may be more expensive.
Because as Mr. Bibbo mentioned, theres costs for stabling and caring for these horses
and things like that. Thats a cost that I consider that we bear. We asked Tricare to pay for the
physical therapy because thats the benefits package that was afforded to me when I joined the
military. So we asked them to pay for that.
The additional costs by the specific setting or tools that are used, those are ours. And
weve always paid those. We never made any attempt to claim those or anything. So -- and
along the lines of benefits, I dont -- Im not a big fan of preaching that Im entitled to something
that Im not entitled to. When I joined the military thats one of the things that is said.
You walk into any recruiting station that recruiters going to tell that young 17, 18 year
old kid, You join the military you might not make as much money but boy, we got a great health
care benefits package. I didnt join the military because I had a daughter with physical needs or
special needs. I joined the military to serve my country. The situation with Kaitlyn came down
the road as we were in the middle of our career. But I do believe in holding the Government
back to that standard that they said would be there for me when we needed it.
Q Okay.
MR. VOKEY: No more questions.
MR. BIBBO: Maybe just a couple of questions.
CROSS-EXAMINATION
BY MR. BIBBO:
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Q Captain Samuels, you had mentioned -- you talked about Health Net and Humana.
And you realized that those are corporations and they contract with TMA as managed cares
support doctors?
A Yes, sir. I do. But I also understand that TMA is responsible for managing those
contracts.
Q Youre correct, sir. And these contractors are subject to the laws, regulations and
policies of Tricare in their contract -- subject to the terms of their contract. Correct?
A Absolutely. Absolutely understand that. Which in my mind would make it more
standardized.
Q Yes, sir. So -- and you must appreciate that they deal with hundreds of thousands
of claims, a large amount of claims. Right?
A I can appreciate that, yes.
Q And in processing those claims in many cases theyre going to pay for something
or maybe not pay for something that they should have or paid for something they shouldnt have
under Tricares authority. That happens a decent amount of the time.
A Sir, are you saying the volume, the work - -
Q Let me rephrase that question.
A -- justifies an error?
Q You can appreciate that Tricare -- the Tricare contractors pay for things at times
that they shouldnt have paid for.
A Sure. But I wouldnt excuse that.
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Q But -- and would it surprise you or are you aware that, you know, under their
contract and under federal law that if they paid for something they shouldnt have paid for with
appropriated funds that theres an obligation to recoup those funds?
A Sure. I -- my objection -- I think I know where youre going. My objection
earlier was more with the fact that, How did we get there, you know, that they should have read
the material that was presented to them early on.
Q Well, and I understand. You know, I -- and part of what I do is I manage the
claims collection program. And when youre dealing with recoupment cases just by nature the
process is not ideal. Thats -- you know, there was a payment made and what it should have --or
when you deal with these appeals a lot of the time the process is not ideal. And so you would
agree Tricare is not a perfect program?
A No. I would agree its not a perfect program, yes.
Q Okay. And theres probably no such thing as a perfect health benefits program
and -- but would you also agree that theres many things about the Tricare program, many things
that might not be ideal that are simply -- theyre -- they cant be addressed in this forum, they
would have to be addressed in other forums?
A Well, sir, you mentioned that in your opening statement. And I would say, What
forum do we need to go to. Weve filed congressionals on this. They referred us back to -- they
wont address it until we run the appeals process through Tricare. Then we come through the
appeals process through Tricare and youre essentially saying, Were bound by the rules that
Congress is tying us to. So were going in two different directions. If theres another forum Ill
be there.
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Q Well, and again, I can appreciate that, sir. And I -- you know, I admire, you know,
you for advocating on behalf of your daughter. And its certainly not an intent to deny any
benefit that she should have. Its simply, you know, our position here is based upon the rules and
policies as we interpret them. So thank your for your testimony. Thats all I have.
A Thank you.
MR. VOKEY: Nothing further, sir.
JUDGE HEINY: All right. I just have a few questions.
Mr. Vokey knows this. Mr. Bibbo knows this. And I, as an attorney, know this. In the
civilian world they have what is known as detrimental reliance. You ask someone a question.
They say, How much does that cost. And they give you an answer then and you rely on that.
Then theyre bound by that. And they are locked in when they -- when you go to them and ask
them, Is this covered.
The problem is with Tricare they can only pay what Congress allows them to pay. And
no matter how many times you ask someone, Is this covered, and they say, Yes, its covered,
Tricare can only still pay what the Congress told them they could pay.
And so the theory of detrimental reliance which would be an excellent avenue in the
civilian world or there are some other things where you relied on what they said, for most cases
that is perfectly logical sense. You went into it. You asked them, Are you sure this is to be
covered, Are you sure theyre going to pay it. And they say, Yes, yes, yes. And then they come
back and say, Well, no, its not covered.
And you say, Well, Ive been -- I feel betrayed because I asked them, I went out of my
way to make sure that it was covered. But as Ive stated, Tricare can only pay what Congress
says they can pay. And even when someone else says, Yes, we will, that doesnt bind Tricare.
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Its one of those things that is -- makes you feel -- its counterintuitive. It makes you
feel bad. Because you did everything you could. You asked them. You told them. And then it
went on for awhile and they were paying it. And so you think, Well, it must be okay. I mean,
theyre paying it. And then they come back and say, Well, we shouldnt have paid that and not
only should we not have paid it, give us all our money back.
And I know how youre feeling betrayed. But Tricare is in a position where they cant
obligate money that the Congress has said is non-payable. So basically, they have to --
JUDGE HEINY: --do that.
THE WITNESS: And I understand that.
JUDGE HEINY: Yes.
THE WITNESS: I just dont think that the system will ever get any better unless --as
long as theres an -- the ability to fix every mistake you make along the way with no
consequences.
JUDGE HEINY: And also, it becomes more difficult because answers are not given right
away. Had you known that this was going to be denied three years ago a bunch of other people
would be sitting in that room three years ago trying to make the decision in this case. But it does
take awhile for decisions to be made. And I will move this along as fast as I can. But theres
been reasons why its been delayed since it was dropped on my desk. And were going to try to
get it going. So --
Which leads to another question that is more appropriate to ask Mr. Vokey and Mr.
Bibbo.
The amount in controversy is $700?
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(No response.)
JUDGE HEINY: Mr. Bibbo?
MR. BIBBO: Thats my understanding.
JUDGE HEINY: Okay.
MR. BIBBO: Although I -- you know, sometimes theres more claims out there that we
dont know about.
JUDGE HEINY: Okay.
MR. BIBBO: But that was our understanding of the amount in controversy.
JUDGE HEINY: All right. So -- because part of the reason, when I write up my report I
have to put the amount in controversy.
THE WITNESS: Sir, can I address that issue?
JUDGE HEINY: Sure.
THE WITNESS: We had -- the $700 was the recoupment from the services that Tricare
paid from, you know, early 2009 to the end of 2009. There was also services we billed through -
- in November of 2009. Then there was January of 2 010 to May or June of 2010. Those claims
were presented. Those were the ones that we were referring to that kind of bounced back and
forth requesting more information and then were ultimately denied. So --
JUDGE HEINY: Okay.
THE WITNESS: -- I would offer were kind of disputing for that. My --
JUDGE HEINY: Okay.
THE WITNESS: My feeling is once Tricare told us no then we have to stop. But
whether I agree with the decision or not I do wear a uniform and I respect the orders that Im
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given. But up until that time -- so -- JUDGE HEINY: So the amount -- THE WITNESS: --we
paid that out of our pocket then --
JUDGE HEINY: Yes.
THE WITNESS: -- to try to Rocky Top.
JUDGE HEINY: So the amount in dispute would be everything that you paid up until the
time they told you no?
THE WITNESS: Well, we -- I think if wed submitted those claims it would be in the
neighborhood of about $1,200 --
JUDGE HEINY: Okay. So - -
THE WITNESS: -- in addition to the 700.
JUDGE HEINY: So 1,200 plus --
MR. BIBBO: Actually, to clarify, sir, Im looking at our Statement of Position. And we
have $1,327.44. I took the 70 0 before and then there was also a $627.06 recoupment action that
is currently suspended.
JUDGE HEINY: So basically, in any event its less than $2,000.
THE WITNESS: Yes, sir. I --
JUDGE HEINY: Somewhere between the 70 0, the 1,32 7 and the 1,90 0 but its --
THE WITNESS: Yes.
JUDGE HEINY: -- under 2,000. Okay. All right.
THE WITNESS: And hopefully, I havent conveyed that this is all about getting the
money back that we paid. I -- our primary goal is to get Kaitlyn the services she needs to move
forward.
JUDGE HEINY: I understand that.
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THE WITNESS: I hope I didnt go too far down a rabbit hole there.
JUDGE HEINY: Because Im well aware that you have spent large amounts over and
above that amount to be here today. That didnt occur with the services you received without
having spent large sums of money well in excess of the amount being disputed here today. And
Im well aware of that.
Okay. All right. Anything else I need to hear that hasnt come up?
THE WITNESS: No, sir.
Questions based on my questions?
MR. VOKEY: No, sir.
MR. BIBBO: (No response.)
MR. BIBBO: No, sir.
MR. BIBBO: Nothing else.
JUDGE HEINY: Have a seat.
Next witness?
MR. BIBBO: Last witness is call Jennifer Samuels, Your Honor.
Ms. Samuels, if you could take your seat again in the stand. You testified earlier. You
understand the warning. And were going to continue with your testimony. Whereupon,
JENNIFER SAMUELS
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having been previously duly cautioned, was recalled as a witness herein and was
examined and testified further as follows:
DIRECT EXAMINATION
BY MR. VOKEY:
Q All right, Jennifer. Lets go right to talking a little bit about costs.
A Okay.
Q Now, theres always a cost associated with having children. Theyre expensive
things to have. I know that. With Kaitlyn -- and Im not talking about necessarily costs that you
-- you know, medical costs, things involving Tricare, but cost to you and your family for having
Kaitlyn. There are some extraordinary expenses anyway, arent there?
A Yes.
Q What are some of the expenses you have to deal with?
A I -- weve been paying them for so long that I will probably forget half of them.
But one thing is she has to have pull-ups. For 15 years weve been paying for some of diaper or
pull-ups for her because shes only partially potty trained. To buy her a bike it was $1,200. It
wasnt $80 at Wal-Mart. To have another means of transportation for her -- she cant walk long
distances with support -- if I dont put the wheelchair in and out of the car -- I wanted a medical
stroller. Tricare said that was a convenience and it wasnt covered. So we paid $500 for a
stroller. Just little things like that add up over the years. Thats just an example of a couple.
Q And how about clothes, like shoes? You have to have special shoes --
A Yes.
Q -- or anything?
137
A Any shoes to go over her orthotics are $70. Theyre not 19.99 at Target. If she
has any --at one time she had some inserts in her shoes for her feet. They were not covered.
They were $500. Tricare only covers it if its attached to her foot. If its actually a -- unless
youre diabetic. So for her diagnosis code that wasnt covered. So thats just another example.
Q And how about her diet?
A She also needs her liquids thickened so we have to buy Thick-It at $20 a can,
which goes through in about a week or a week-and-a-half. And again, thats something thats not
covered.
Q What is Thick-It?
A Thick-It is -- its a powdery substance. Stroke victims often have to use it. It just
thickens her liquids. So due to her oral motor problems she cant control her liquids as well.
That way she can control it easier to swallow.
Q Okay. And how about for medical care or physical therapy? You have to pay
over and above a certain amount?
A If its covered -- if its a covered service we do not.
Q I guess there are sometimes there are things that are not covered services that
you have to pay out of pocket?
A Most of the -- well, theres things that I would wish to try with her that we dont
because its not covered. Or we have done some programs with her that were -- some therapy-
type programs that were not covered that --
Q Okay.
A --we paid for that were in the thousands.
138
Q All right. Mark told us a little about physical therapy on a horse being available
from Medicaid. There was also a way that you can get assistance through Medicaid yourself.
A Well, we are -- we -- Kaitlyn does qualify for the Medicaid waiver. The Medicaid
waiver --in many states its called the Katie Beckett Waiver. It waives our income. Its based on
the disability of the person. She is entitled to it in the State of Texas and every state in the
United States. But in my states there is a waiting list.
And because every state runs their own Medicaid waiver program we go to the end of the
list every time we move. So military families essentially do not get the Medicaid waiver because
they are serving in the military. Right now she is 26,000 after two years on one of the waivers
she qualifies for and should have here in Texas. The other one, shes 12,000 on the list.
Q All right. You say shes not eligible because shes in the military. Is that because
every time you move from state to state you go back to the bottom of the list --
A Exactly.
Q -- again?
A You go back to the bottom of the list.
Q All right. So you dont have that available to you because of your service in the
military --
A So we would not be sitting here right now if she got the Medicaid waiver.
Because Medicaid does cover physical therapy using the horse.
Q Okay. But because of your service and your --
A Right.
Q -- constant having to move thats not available to you and you rely just on
Tricare?
139
A Right. So low-income families do get physical therapy utilizing a horse but
military families do not.
Q Okay. So if Mark dumped you, divorced you, left you destitute --
A If he was a deadbeat dad --
Q -- then you could --
A --we would not be here right now.
Q -- you could get Medicaid --
A Yes.
Q -- and youd get the same treatments that Kaitlyn needs.
A And I may be wrong on this. But I thought there was some correlation between
Medicaid billing codes and Tricare. I thought there was some type of -- I may be wrong about
that. But I thought there was some correlation there --
Q Okay.
A -- that theyre based somewhat on the same initial information.
Q You sound like you , know a lot about EOBs and Tricare and everything. Now,
youve been dealing with Tricare for a number of years now.
A Yes.
Q Youve been fighting Tricare for a number of years.
A Yes.
Q And I know just over 20 years in the Marine Corps and had no special needs
children but I did have a son who had a problem when he was born that required something
extraordinary. And it was the biggest nightmare in the world how much time we spent with
Tricare to try to get it covered. And I cant imagine if thats something thats constantly present.
140
Q Well -- and Mark alluded to this. When we were dealing with Health Net we did
not have -- I dont think -- we did not have the same issues that we have here. Humana very
frequently, almost very -- almost every claim, I would say 80 percent of the claims they send
back and want more information. And thats what he was alluding to, that they dont all work
the same. Health Net was a much more seamless company, contractor to work with. Humana is
the most frustrating that I have dealt with.
Q Now, what --
A Which has led to this whole thing getting as far along as it did is because they
would always ask for more information. Wed resubmit. Then theyd pay Rocky Top. And then
the next month the same thing would happen again. So it took us six months before we realized
that they were -- before they came through and actually said, Were medically denying this.
Q My wife --we have the same opinion when it comes to Humana. All right.
Whats in store for Kaitlyn for the future? Youve got -- Marks about to retire, which could
mean either you can stay here or if he gets a job elsewhere you have to move again. But the
future for Kaitlyn, whats in store for Kaitlyn in say, five years?
A Five years shell actually still -- she will stay in the public school system until
shes 21. So she will still have very much the same schedule as she has now. Beyond that, thats
something that were starting to work on addressing and looking into options of programs she
can be a part of. Hopefully, by that point we might have become closer to the top of the list on
the Medicaid waiver so at least she would have some of those benefits available to her --
Q Okay.
A -- which would include respite.
Q And what about coverage under Tricare for Kaitlyn after shes of a majority?
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A Because shes disabled Tricare will -- the way I understand it, she will be covered
under Tricare for her life because shes dependent.
Q Okay. So -- I dont want to sound too macabre. But, I mean, at some point you
and Mark are going to get a lot older.
A Right.
Q And eventually youre going to die. Everybody does.
A Right.
Q You have any fears about growing old and whats going to happen with Kaitlyn?
A Oh, yes, thats my biggest fear of my entire life.
Q Well --
A And its
Q -- tell us about that a little bit.
A Well, what -- where shes going to live, that shes going to be cared for. And
thats something that I plan to work on over the next years that -- the years she has left in the
public school system -- is finding a facility that we are happy with where she can stay and we
know when were gone that she is cared for.
Q So whats important right now when it comes to physical therapy for Kaitlyn?
A Well, the most important thing, the thing that scares me more than anything, is
what the orthopedist says, is that if her curve gets worse shes going to have to have surgery
because of the curve and also because of her hips. Straighten out her spine. Because its
affecting her hips, as well.
But if we do that surgery theres a 50 percent chance or greater that she will not walk, that
-- meaning she will not stand, she will not transition. Her life will become -- and mine will
142
become dramatically different. We will require a lot more equipment. She will not be able to
walk throughout the house. She will be either in a wheelchair or in bed with equipment to assist
with transitions. Or she would be -- if we didnt go to those great measures she would be -- have
to live in an institution where they have that equipment.
Q All right. And youve got health care education, youve been dealing with
doctors and nurses and physical therapists and all kinds of people for years and years and years.
How important is physical therapy for Kaitlyn right now?
A Well, its dramatically important because we dont want to have surgery. Shes at
the age where she will likely go through a growth spurt, which thats when scoliosis can get far
worse is during that time. Its more crucial now than its -- its as crucial now as it probably was
when she was in the birth to three ages. Based on the fact that -- also, what Suzanne was saying
that when she hits her 20s her physical abilities will lessen and the orthopedist has said that, as
well. They tend to slow down. So if we lose things now shes -- she doesnt have a chance.
Q She wont get them back.
A Right.
Q If you --
A She wont get them back.
Q -- lose them now you wont get them back?
A No, she will not get them back.
Q So if I understand you right, then the progress you make is between now and the
age of 20 or -- definitely early 20s. Now is the time that you have to do it.
A Right.
Q And is there a chance that she can walk on her own?
143
A We are still told yes. I mean, when she walks its with very little assistance. On
the video when she was walking, like Suzanne said, she had already had 3 0 minutes of physical
therapy because we had to do the video after her session. So she walks with very little
assistance. But when the curve gets worse the walking gets worse.
Q Okay. And when she stopped going to Rocky Top for that time and the curve did
get worse did it affect her ability to walk?
A Oh, definitely.
Q And --
A She --
Q -- stand?
A She was walking with one hand held before. And then when the curve gets worse
you have to give her more support at her torso. But she was walking with one hand held,
standing holding one hand. And honestly? I have to say that I knew it was helping her. But that
showed me even more dramatically how much it was helping her by us taking that unintended
break.
Q And, Jennifer, whats your biggest fear right now as were sitting in the courtroom
with the Judge? Whats your biggest fear concerning Kaitlyn?
A That its not being understood that this is physical therapy. This is physical
therapy. Its not some alternate type of therapy. It is physical therapy. And the fact that we
have to research that its okay to put her on the horse and it has to be proven, are they
researching therapy balls? Are they making sure that theyre using a therapy ball and not a
beach ball in every physical therapy clinic? No other therapy tool is put through this. It seems
just ridiculous. Its physical therapy.
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I take her there for physical therapy. She has done therapeutic riding. She did that when
she was little. Its not the same thing. It is -- she was not working on physical therapy goals.
This is physical therapy. I take her there for physical therapy.
And if Suzanne said tomorrow, We re going to start doing the rest of her sessions in a
therapy room, I want to try this, I would say, Fine. Were taking her there for physical therapy.
It is physical therapy. That is what nobody at Tricare would even have the conversation about.
They will not believe that it is physical therapy.
Q They just quickly say -- call it hippotherapy and then decide its not covered?
A Right. And they -- as Mr. Bibbo alluded to in his opening statements, how we
sent in documents about hippotherapy, because Tricare asked us to. And we didnt have access
to the best studies because you go online and you cant get them if youre not a medical person.
So the only reason we sent those in is because thats what they asked for.
And if my insurance company asks me for documents thats going to help end this Im
going to do whatever they say. Im going to jump through whatever hoops they say. Even
though I dont believe that this is some other type of therapy. Its physical therapy. They asked
me to do that. I didnt suggest it. That was brought up by Tricare.
Q Okay. All right. Jennifer, anything else that you want to mention to the Judge
before we end this?
A I think the most -- the -- what Im most exasperated about through this whole
thing today is the fact of having to prove that the horse is an okay tool to use. You dont do that
with any other therapy tool. That part just does not make sense. This is physical therapy. I am
there every session. Suzanne, who testified here today, is the practitioner providing the therapy.
It is physical therapy. That is what it is. I would -- thats -- you can tell what Im most
145
passionate about. Youre trying to call something that is physical therapy something else just
because a horse is there.
If this physical therapy was done in a pool, I dont think wed have these same questions.
Physical therapy is done in a pool all the time. But that settings fine. But you put my child on a
horse? And all of a sudden its some alternative, strange therapy.
Q Okay. Thank you, Jennifer.
JUDGE HEINY: Mr. Bibbo, questions?
MR. BIBBO: No questions. None.
I do thank you for being here today. I am just sorry that this has taken so long to get to
this point.
Mr. Vokey, any additional evidence?
MR. VOKEY: Yes, sir. We have a -- sir, we -- just a comment. We had --we provided
Exhibit C, which is a Definition of Modalities. And again, along with the confusion here, the
semantics of things being argued, it can be argued that hippotherapy is one thing. People refer to
it as -- theyll use it interchangeably with the term physical therapy. And also, the word
modality is also thrown out there.
And use of a horse in physical therapy is not really a modality, either. And using the
definition for the AMA, I think, its clear that its, Any physical agent applied to produce
therapeutic changes to biologic tissue and includes but not limited to, thermal, acoustic, light,
mechanical or electric energy.
Like, a modality could be the application of electrodes to a body to produce a certain
result, hoping to change -- some kind of biological change to the tissue. When were dealing
146
with physical therapy and specifically with Kaitlyn, were not dealing with use of a horse being a
separate modality. Which it certainly is not.
What we have is physical therapy where you use a ball. And the use of a ball is not its
own modality by definition. Same with a bench or a barrel. And a horse is no different. It is not
something that produces therapeutic changes to biologic tissue. It is simply just another tool in
conducting that necessary physical therapy.
JUDGE HEINY: So modality would be something if you hurt your shoulder and you put
a heating pad on it, the heat --
MR. VOKEY: Thats correct, Your Honor.
JUDGE HEINY: -- would then help your shoulder. If you sprained your ankle you
would sit in the whirlpool for awhile because thats heat applying to the injury, which helps the
muscles.
MR. VOKEY: Yes, Your Honor. I --
JUDGE HEINY: So thats modality.
MR. VOKEY: Ive got a bad back. Ive got a disability ring for my back. And at one
point they had -- I had this little machine that stuck these things over my back and it sent
electrical shocks into my lower back. That --
JUDGE HEINY: Yes.
MR. VOKEY: -- would be a modality.
MR. VOKEY: Use of a horse in physical therapy is no more modality than use of a
rubber ball or a bench or a barrel. And I think one thing thats important to note and often times
I think why this term hippotherapy is often misused or misunderstood, misapplied, if you look at
147
Exhibit D, Your Honor, the -- entitled, Tricare and Cognitive Rehabilitative Therapy. And if you
read that article it talks about what might not be covered by Tricare.
And its really dealing with people with cognitive brain problems, including traumatic
brain injury. And theyre talking about examples of therapies that are not authorized for
cognitive rehabilitative therapy. And they actually mention hippotherapy.
Its funny. This is the only place Ive ever found where Tricare even says anything about
defining hippotherapy or saying anything about hippotherapy. I dont even find a definition of
hippotherapy according to Tricare. This is the only mention we have in any policy, letters or
anything from Tricare. So --
JUDGE HEINY: And that was limited to treatment of?
MR. VOKEY: Cognitive rehabilitation therapy.
JUDGE HEINY: So just as one therapy may be used for one thing and be appropriate, it
may not be used for something else .
MR. VOKEY: Yes. And theres a difference here with the cognitive rehabilitation
therapy. There the use of a horse and this hippotherapy is probably -- it is its own modality.
Youll take a wounded warrior -- and Ive worked with a lot of wounded warriors and some guys
who do things with them.
They will take wounded warriors and put them on the horse, guys who have had
traumatic brain injury, IEDs gone off and damaged the head, in hopes that there are going to be
some kind of connection thats going to produce certain neurological responses. They may be
speaking. Maybe theyre more clear in their speech. Thats what theyre hoping for, that kind of
connection. And its again, cognitive rehabilitative therapy.
148
And use of hippotherapy, putting them on the horse, hoping for a certain result Tricare
doesnt cover. And I understand it.
And I actually agree with it. But thats not what we have with Kaitlyn. Were not talking
about a cognitive rehabilitative therapy where we were trying to correct the pachygyria or the
absence of the corpus callosum. Thats not what the physical therapy is doing.
What we have here is a physical condition with the tightening of the muscles, the bending
of the spine and we are using physical therapy to remedy that physical condition. So it is not
cognitive rehabilitative therapy. It is a tool only in physical therapy. And physical therapy, as I
think everyone agrees, is absolutely necessary and it is approved. So I dont think theres any
issue of whether Kaitlyns entitled to physical therapy. Its just what little thing that shes sitting
on that stretches her legs and makes her move.
Your Honor, I wanted to -- I had some things. I dont know if you want them brought in
as exhibits or not. But they are copies of things from the Tricare Policy Manual for you to
review.
JUDGE HEINY: Sure. We can make them hearing exhibits.
MR. VOKEY: All right, sir.
JUDGE HEINY: Because theyre coming out of Tricare. And Mr. Bibbo is much more
familiar with the Tricare regulations than I ever hope to be. Sol have no objection to making
those hearing exhibits.
MR. VOKEY: Sir, what I have to hand the Court Ive marked as Exhibit F. And its
from the Tricare Policy Manual 6010.54- MIKE, Chapter 1, Section 3 .1 on Rare Diseases.
(The document referred to wasmarked for identification as Hearing Exhibit F.)
149
JUDGE HEINY: Okay. Thank you. Mr. Bibbo, any objection to me considering the
Tricare Policy Manual?
MR. BIBBO: No, not at all, sir.
JUDGE HEINY: Okay.
F is admitted.
(The document referred to, having been previously marked for identification as Hearing
Exhibit F, was received in evidence.)
MR. VOKEY: Sir, I have whats been marked as Exhibit G from the Tricare Policy
Manual, Chapter 1, Section 2.12 on Unproven Drugs, Devices, Medical Treatments and
Procedures.
(The document referred to was marked for identification as Hearing Exhibit G.)
JUDGE HEINY: Okay. Mr. Bibbo, any objection to this section of the manual?
MR. BIBBO: No, sir. JUDGE HEINY: Okay. G is admitted.
(The document referred to, having been previously marked for identification as Hearing
Exhibit G, was received in evidence.)
MR. VOKEY: All right, sir. And on Exhibit F on Rare Diseases, that was provided to
show that Kaitlyns set of facts is -- certainly would qualify as a rare disease under the Tricare
Policy Manual.
Exhibit G is provided -- and I would direct the Courts attention to the top of page 2,
paragraph number 1. And its talking about when cost-sharing is authorized. And it talks about
treatment thats not related to an unproven drug, device, treatment or procedure that therefore,
medically necessary treatment the beneficiary would have received in the absence of any
unproven drug, device or treatment or procedure.
150
And I bring that to point out that using a horse for physical therapy is not an unproven
drug, device, treatment or procedure. What should be considered here is, Is physical therapy a
necessary procedure. And the answer is, Without a doubt, Absolutely. So were not dealing with
a unproven drug, device, medical treatment and procedures. Were dealing with physical
therapy. And Ive seen nothing questioning whether a rubber ball can be used or a bench or a
barrel or a wedge or any other tool that a physical therapist feels is the appropriate tool to use in
doing her job.
In two final portions of the Tricare Policy Manual to submit to review, which is
Chapter 7, Section 18.1, entitled, Rehabilitation General; and then Chapter 7, Section 18.2,
entitled, Physical Medicine Therapy. I have those marked as Exhibits H and I respectively.
(The documents referred to were marked for identification as Hearing Exhibits H and I.)
JUDGE HEINY: Mr. Bibbo, any objection to the manual?
MR. BIBBO: No, none at all.
JUDGE HEINY: Okay. H and I are admitted.
(The documents referred to, having been previously marked for identification as Hearing
Exhibits H and I, were received in evidence.)
JUDGE HEINY: Anything additional?
MR. VOKEY: No, sir. The -- I provided the rehabilitation -- the general -- that one
section because arguably, this therapy -- this physical therapy could fall under that rehabilitation
section, as well. But it should be noted in there that if youre looking at Exhibit H on -- under
Rehabilitation on the second page it talks about the, Following therapies and services that may be
cost-shared and included physical therapy, rehabilitation counseling, mental health services,
speech pathology services and occupational therapy.
151
And here in this section they distinguish between the different kinds of therapy. And
physical therapy being very distinct from speech therapy and occupational therapy. And again,
that problem with semantics on hippotherapy is that hippotherapy can be referred to a number of
different things you do on a horse. And people can use it a lot of different ways. We are dealing
in this case with Kaitlyn as physical therapy.
And when you go to the Exhibit I under the Physical Medicine Therapy section it
includes some exclusions of whats not covered. And its interesting to note that of all the
specific exclusions listed in the Tricare Policy Manual nowhere does it say that using a horse as
physical therapy is an exclusion. Matter of fact, it doesnt even mention hippotherapy as an
exclusion.
And given the lack of a definition for even the word hippotherapy in Tricare, it seems that
these decisions have been made kind of random based on whoever looks at this thing says, This
is what I believe is happening. And everyones getting these terms confused.
And theres no wonder that Jennifers been so frustrated and Marks been so frustrated
when all thats been happening has been physical therapy. And I think a close reading of these
sections you will see, Your Honor, that certainly whats being done for Kaitlyn is authorized.
No other evidence that I have to submit, Your Honor.
JUDGE HEINY: Now, one last question. The other individual in the hearing room, can
you identify her?
MR. VOKEY: Leslie Minora, who works for local publication, local newspaper.
JUDGE HEINY: Okay.
All right. Mr. Bibbo, do you have any documents you wish me to see, any additional
information you want to present?
152
MR. BIBBO: Not at this time, sir.
JUDGE HEINY: Okay.
Then in that case I believe weve reached the point of closing arguments. How do you
guys want to do it?
Mr. Bibbo, you want to do a written closing argument?
MR. BIBBO: Well, as -- I think I would take that opportunity based upon the additional
time youve given me to respond to some of the new evidence. As I understand it, Mr. Vokey
wants to do an oral closing statement. So I think Im going to take the opportunity to say
something brief orally but reserve most of my comments for the written closing statement.
JUDGE HEINY: Mr. Vokey, you have any problems with that?
MR. VOKEY: No, sir.
Mr. Bibbo, you want to go first or last?
MR. BIBBO: I suppose we can do it the same way as the openings --
JUDGE HEINY: Okay.
MR. BIBBO: -- and go second.
JUDGE HEINY: Mr. Vokey, weve reached the point of closing arguments.
Please proceed.
MR. VOKEY: Yes, Your Honor. CLOSING ARGUMENT ON BEHALF OF THE
APPLICANT
MR. VOKEY: Your Honor, when Mark and Jennifer first came to see me and they told
me about this I got to be honest with you, Im not going to lie to you, I was angry. And Im still
153
pretty angry. As anybody whos been in the service for a number of years and having to deal
with Tricare -- I think they were being kind -- fight Tricare it can often be a nightmare.
Now, I dealt with not just Tricare but other insurance companies, as well. And health
care is just not a fun thing to be involved with. But to hear what the dispute here is in Kaitlyns
case, my first thought -- and I think I said it out loud -- was, This is one of the dumbest things I
ever heard. Were talking about a little girl that needs physical therapy, and theyre objecting
because they put her on a horse. I said, That cant be what the real disputes about.
And sure enough, I get the file and I start seeing the paperwork and thats exactly what
the disputes about. And Im thinking, I understand that Tricare -- I mean, were talking about
the federal government and people have to obey regulations, but how could somebody be so cold
and callous as to ignore something thats so necessary for this little girl. And I got angry. I went
home and then I vented with my wife a little bit. She gets used to it. And I thought, Theres got
to be some rational reason why.
I just couldnt understand why. For it seems like such a small thing. Physical therapy.
Why anybody would deny this to Kaitlyn Samuels. And as far as I can tell, shes absolutely
entitled to physical therapy. So I just didnt get it. I mean, Mark and Jennifer told me. I just
didnt get it. I didnt understand the dispute.
And I sit there with my co- counsel, Chad. And hes reading through the regulations.
Hes a hell of a lot smarter than Ill ever be. And were reading through the regulations and it
kind of hits me that this is a -- this is very similar to what happened with me and my wife driving
home in the car, in that its a matter of semantics.
And the word -- this use of the word hippotherapy gets thrown out there and it takes on a
lot of different connotations and meanings. It can be a broad umbrella that encompasses
154
different kinds of therapies like physical therapy and occupational therapy. Some people refer to
hippotherapy as physical therapy using a horse. And some people use it entirely different.
And weve gotten to a point now with a family -- an extraordinary family -- where people
have made assumptions about what the word hippotherapy means and how it should be applied
when were talking about benefits.
Now, Im not walking in the courtroom here, Your Honor, to tell you that I believe that
Tricare -- Im here to change the Tricare system and that, Damn it, Im on a crusade to embrace
hippotherapy for Tricare from now until the end of the time. That is not the case. For I
understand some of the concerns about Tricare or any other insurance company completely
embracing what could be thought of as hippotherapy, anything dealing with a horse.
But the more Im looking at it and the more I talk with Kaitlyns doctors and her physical
therapists and her parents, it became clear to me that this is a big misunderstanding, that Tricare
is my wife sitting in the seat next to me and Im sitting there driving the car with her and were
talking apples and oranges.
But lets look at the facts of what weve heard here today. And what should settle the
issue is exactly whats going on with Kaitlyn Samuels. Weve got a 15 year old girl who was
born with this condition and shes lived with it her whole life. Shes got severe limitations. She
cant talk. She can eat but she cant chew. She cant feed herself. She can walk and stand with
assistance. Her life has been getting better. She has been making progress, getting a little bit
better. Very gradual but better.
And were now at a crossroads where if she doesnt go forward with this physical
therapy, as weve heard from Dr. Acosta and Ms. Sessums, that if we dont do that she could
155
digress and she could lose all the skills that she has right now. And all that Dr. Acosta and Ms.
Sessums say is she needs physical therapy.
Well, how can they deny physical therapy, I say. Thats definitely a medically-necessary
procedure. I think thats universally accepted. Its because what shes sitting on has fur instead
of rubber. It has hair instead of having a wooden bench. And thats the only difference.
And its getting confused. As I pointed out in Exhibit D, on Tricare and Cognitive
Rehabilitation Therapy, its very easy -- I can see the confusion being made -- Oh, this is
hippotherapy. We dont authorize that. See, it even says so in this little policy letter. And heres
where the confusion is. Its because were dealing with somebody with traumatic brain injury.
Definitely a cognitive rehabilitation therapy where the connection is not being made from the
brain. And we want to wake up that part of the brain so it can think properly, maybe
communicate better.
And to put that person on a horse in hopes of seeing some kind of result, well, I can
understand someones reticence to want to pay for that. Because its -- the studies show that
theres a lot of beneficial things about being on a horse but nothing that proves that someones
going to speak better because theyre on a horse.
But for Kaitlyn Samuels, for the love of God, what we have is a bent spine and tight
muscles. And all we are simply trying to do is loosen those muscles, straighten that spine,
strengthen her body so that she can walk and she can stand, so that she can sit on the toilet by
herself, so that she can somewhat get out of bed on her own. And so that if we do that now,
between now and the next five to ten years that maybe shell have a quality of life for the rest of
her life that any human being -- its just a downright basic right.
156
But instead, were talking about denying her simply a physical therapy, the results of
which could result in her requiring surgery or if not surgery, causing her death.
So I understand now what the dispute is about. I -- and I understand now that it is a
matter of semantics. Im not sure if that makes me any less angry or more angry.
But what I do know is if there is any justice in the world, Your Honor, please take this,
consider Kaitlyn Samuels, what kind of condition she is in, what shes going to need in the future
and what she has actually been getting at Rocky Top.
So on that note, Your Honor, Id like to pass Kaitlyn Samuels to you to evaluate what
really has been going on with her and this physical therapy. Thank you.
Mr. Bibbo, comments?
MR. BIBBO: Thank you, sir. And Ill be very brief and reserve some of this -- the rest
for closing statements. CLOSING ARGUMENT ON BEHALF OF THE GOVERNMENT
MR. BIBBO: But what I really want to emphasize and what I thought was the most
illuminating testimony, at least as regards to the issues today, was Dr. Acosta. And Dr. Acosta
was here testifying as a physician, as someone that was familiar with Kaitlyn Samuels condition
and what -- the care that he was seeking for her to get.
And what did he say? He wanted her to get hippotherapy. He specifically used that term.
He talked about the medical literature of hippotherapy, that he thought it was approved, how they
use different modalities. He used that term modality. And he felt that hippotherapy as a
modality was the most -- the best treatment for Kaitlyn Samuels condition. And he specifically
said hippotherapy and not standard physical therapy.
157
And thats really what were talking about here. And were talking about hippotherapy
which by definition, physical therapy -- when a physical therapy -- when a physical therapist
uses a horse thats hippotherapy.
If you look through any of his literature, if you look through the American Hippotherapy
Associations definition of hippotherapy thats what hippotherapy is. Theres nothing that
narrowly defines it to when a horse is used for cognitive disorders or cognitive therapy. Physical
therapy with the use of a horse or when a physical therapist uses a horse thats hippotherapy.
And for whatever reason in the literature there has not been a whole lot of -- certainly,
theres -- has not been enough reliable evidence to show that hippotherapy is proven, it is proven
safe and effective. Thats not to say that it doesnt work. It may work. It may -- you know, the
testimony weve heard today was -- indicated that what -- you know, the treatment that Kaitlyn
Samuels is getting, it is beneficial to her.
And really, you know, thats not the issue here, you know. This is not a hearing on
whether this treatments helping her or not. And, you know, we certainly hope it does. But, you
know, thats not what were analyzing and, you know, TMA didnt, you know, make that an issue
here and scrutinize how this treatment was helping her. Because really thats not the issue in the
case. But certainly, we hope that it does.
But really, there just isnt evidence in the medical literature or in the reliable evidence
which indicate and say that -- to show that hippotherapy is proven. So what do they do now?
Certainly, when you have a treatment that you believe is helping people and the standard forum
of medical research is not giving you what you need to be accepted in the medical establishment,
well, we see a strategy here where were going to -- were just going to say its physical therapy
in a different context.
158
And thats what the American Hippotherapy Association is pushing. And the article was
put into evidence. And its a -- you know, I think its a tactic. But, you know, I dont believe it
changes what were dealing with. Were dealing with hippotherapy and, you know, that is -- the
historic definition of hippotherapy is using a horse in this type of treatment.
So really, what we get back to is it is not a complex case. Tricare is -- it may not be
addressed in the Policy Manual but if you look at Exhibit 17, The Medical Benefits of
Reimbursement Branch, which is responsible for policy in this area, has looked at hippotherapy
many times. Theyve considered it a modality. You know, thats consistent with Dr. Acostas
testimony that he was seeking Kaitlyn Samuels to have this modality of hippotherapy because
other forms of treatment werent working with her.
And under the laws, regulations and policies governing Tricare hippotherapy is not
payable because its not proven safe and effective. And well, you know, one might debate those
policies, you know, those are the policies that were analyzed in this case.
So in short, hippotherapy is a physical therapy using a horse, it is hippotherapy. Or when
a physical therapist uses a horse as a tool. And when -- we heard some testimony that it can be
even a very good tool and give you many things that you cant get anywhere else. I mean, this
animal with the three-dimensional movement.
And, you know -- well, we only heard the testimony. Were talking about something
completely different by, you know, doing this treatment on a ranch, on a horse. It is a different
modality. And its just something that at this point in time in the current state of medical
literature that Tricare cannot pay for. And thats where were at. And maybe in the future that
will change. But for now hippotherapy is not payable under Tricare. Thank you.
159
Keeping the record open for two weeks, two weeks from today close of business.
Mr. Bibbo, when you finish your written argument please send a copy of that to Mr.
Vokey.
Is there anything --
MR. BIBBO: I will.
JUDGE HEINY: -- anything else that we need to address before we go off the record?
MR. VOKEY: I dont think so, sir. Just should note that I just kind of find it a little
amusing that even Dr. Acosta mistakes the use of the word hippotherapy.
JUDGE HEINY: I understand.
All right. It is now 3:42. Were going to go off the record. So we are off the record.
(Whereupon, at 3:42 p.m., the hearing was concluded.
160
CERTIFICATION OF TRANSCRIPT
This is to certify that the attached proceedings before Administrative Judge Claude
Heiny, Department of Defense, Defense Legal Services Agency, Defense Office of Hearings and
Appeals, Washington Hearing Office, in the matter of Kaitlyn Samuels at Dallas, Texas, on
February 10, 2 012 were had as therein appears, and that this is the transcript thereof for the files
of the Department of Defense.
We, the undersigned, do hereby certify that this is a true, accurate, and complete
transcript prepared from the tape made by electronic recording by Barbara Wall, Official
Reporter, on the aforementioned date, and have verified the accuracy of the transcript by
comparing the typewritten transcript against the verbal recording.

Transcriber

Proofreader


APPENDIX B
ALJ Decision Granting Benefits.

RECOMMENDED DECISION
Claim for TRICARE Benefits
)
Appealof )
)
)
Kaitlyn N. Samuels )
TRICARE _Stand_ard Beneficiary )
)
ISSUE: Physical Therapy Services )
_________________________ )
DECiSION
CASE N0.11-43
This decision addresses an Appeal under TRICARE Management Activity
[hereinafter TMA]
1
Task Order 11:43 for reimbursement of. payments for physical
therapy services. .
I. OVERVIEW
. This is the recommended decision of TRICARE Hearing Officer, Administrative
Judge Claude R Heiny, in the TRICARE Appeal case regarding the above-named
Beneficiary, and is authorized pursuant to .10 U.S.C. Sections 1071 et seq and 32 CFR
199.10. Recommended decisions are not binding on TRICARE.
A. Recommendations. After due consideration of the record (31 Exhibits (Ex)),
Appellant's exhibits A through I, and hearing_ transcript. which includes the testimony of
four witnesses, I recommend the Director, TRICARE, or delegee
2
approve cost-sharing
for physical therapy services of $1 ,327.44.
B. Contact Information. Mr. Colby Vokey, Esq., on behalf of the Beneficiary,
Kaithlyn N. Samuel. Mr. Vokey's address is Fitzpatrick, Hagood, Smith & Uhf LLP,
Chateau Plaza, 2512 McKinney Avenue, Suite 14DO,.Dallas, Texas 75201, telephone
number: (214) 237-0900.
1
TMA and TRlCARE were formerly known as the Office of the Civilian Health and Medical Program of
the Uniformed Services (OCHAMPUS). Although TRICARE no longer uses the .acronyms, "OCHAMPUS"
and "CHAMPUS," many statutory, regulatory and policy documents still contain these acronyms.
2
Recently, Acting Deputy Chief, TRlCARE Policy and has decided. most appeals under
32 C.F.R. 199.10. When this official issues a final agency decision under 32 C.F.R. 199.10(e)(1), it
"will not be relied on, used, or cited as precedent by the Department of Defense in the administration of
[TRICAREJ."
TMA, TRICARE and TMA counsel are. designated herein as the "Appellee" in this
case.
3
Appellee is represented by Mr. Michael Bibbo, and his office address is Chief,
Claims Division, Office of General Counsel, TRICARE Management Activity, 16401
East Centretech Parkway, Aurora, CO 80011-9066, and his telephone number is (303)
676-3462. Appellee participated in the hearing by video teleconference (VTC).
C. Brief Summary of Appeal._ The Beneficiary appeals TRICARE's denial of
cost-sharing for physical therapy services from April 23, 2009, through March 31, 2010,
for 'the Beneficiary. (Ex. 2, Ex; 13, Ex. 16, Ex. 19, 20) On September 1, .2009,
Appellant was directed to have outpatient physiCal therapy once a week through March
2010. (Ex: 4, page 3; Ex. 5, page 13) Appellant suffers from agenesis of the corpus
callosum and Pachygyria. (Ex. 14, page 3, Tr. 16)
On December 6, 2010, TMA provided a peer review, which found the services
provided, uP hysical Therapy (Hippo Therapy), was a non-covered benefit according to
TRICARE policy. 9, page 4) The peer reView stated that, by law, TRICARE could
only cost-share medically necessary supplies anc;! serviees: Any medical treatment or
procedure whose safety and efficacy had not been established was unproven and
excluded from coverage. Reliable evidence was required to show that the medical
. treatment or procedure had been the subject of well-co.ntrolled studies of clinically
meaningful endpoints. The exclusion included all services directly related to the
unproven medical treatment or procedure. (Ex. 9, page 5; Ex. 17, page 1)
On December 15, 2010, a TMA formal review was requested of the denied
physical therapy services. {Ex. 10, page 1) It was argued that nothing in the TRICARE
manual stated that physical therapy could not take place on a horse. The horse was
acting as a "dynamic surface". in the same manner as a therapy ball or balance board. It
was argued, Appellant was receiving the same type of _physical. therapy she would
receive in a therapy ro.om. {Ex. 10, page 1)
On 1, 2011, TMA made a Formal Review Decisi()n upholding the previous
denial. TRICARE cost-sharing could not be approved for the hippotherapy
4
provided
because it is not a proven treatment and not a TRICARE-covered l:?enefit. (Ex. 18, page
7) The decision stated:
3
This recommended decision may refer to Beneficiary, Provider, and Sponsor as"Appellant and to TMA
as "Appellee." The use of the terms "Appellant, "Beneficiary," "Provider," or "Sponsor." or for the parties
filing the appeal of benefits .. denial, and "Appellee," for the party defending the denial of
benefits, is not meant to imply that the parties are in an adversarial relationship with each other. -The
terms "Appellanr and "Appellee" are commonly used through.out the legal community to depict the status
of the parties and the case, and their use, as opposed to names, eases the burden of redaction, should
there be a request for this recommended decision under the Freedom of Information Act.
4
The American Hippotherapy Association defines hippotherapy as a "medical treatment, the essence of
which is provided by the horse, albeit, 'guided,' in effect, by a handler." (Ex. 17, page 4)
2
On January 6, 2011, TMA requested Beneficiary's parents provide reliable
evidence that hippotherapy has gained national acceptance as a standard
of medical practice for the diagnosed condition. (Ex. 18,
page 3) In order to prevent TRICARE patients from being exposed to less
than fully developed medical procedures, TRICARE policy restricts
benefits to those procedures for which the safety and efficacy have been
proven and which have gained acceptance as standard and usual practice
in the medical community. 32 C.F.R 199.4(g)(15}; TPM, Chapter 1,
Section 2.1. The TRICARE Program excludes from coverage those
services and supplies that are found to be unproven at the time the
services and supplies are rendered. See ld. (Ex. 18, page 4)
D. Brief description of beneficiary's medical condition. The Beneficiary is a
15-year-old female, TRICARE. Standard beneficiary, dependent daughter of Captain
Mark Samuels, USN, an active-dutY ser\tice member. (Tr. 171) She suffers from
agenesis of the corpus callosum; a qongenital disorder. The corpus callosum is a wide,
flat bundle of neural fibers beneath the cortex of the brain that connects the left and
right cerebral hemispheres and facilitates interhemispheric communication. It helps the
right brain and left brain communicate. (Tr. 158) Agenesis of the corpus callosum is a
disorder in which the corpus callosum is partially or completely absent. Symptoms
include: seizures; feeding problems; difficulties holding the head erect, sitting, standing,
and walking; impairments. in mental and physical development; and in hand-eye
coordination. (Ex. F) A malformation of the corpus callosum disrupts early cerebral
(Ex. F)
Pachygyria is a congenital malformation of tf1e cerebral hemisphere. There is a
disturbance in the brain tissue in which the outer cortex of the brain is thicker than
. normal. (Tr. 158) It is a migrational disorder of the brain where the brain spreads out.
(Tr. 50) Typically,. children have developmental delay and seizures, the onset and
severity depending on the: sever.ity of the cortical malformation. The Beneficiary's
mental-level tests place her in 'the high infant-toddler-preschool range. (Tr. 20, 56) She
continues to make gradual progress. (Tr. 53) The BenefiCiary suffered epilepsy with
seizures starting at age four or five. She currently has one or two seizures a month. (Tr.
58) . Agenesis of the corpus callosum and Pachygyria cause neurological,
neuromuscular problems. (Tr. 17) She currently sees an doctor and a board
certified pediatric neurologist. (fr. 18)
Because of the Beneficiary's brain disorders, her muscles do not function
appropriately. (Tr. 164) She suffers from neuromuscular scoliosis, a medical condition in
which a person's spine is curved from side to side. Most individuals have a balance of
the muscles on each side of the spine keeping their spines straight up and erect. (Tr.
165) Because the Beneficiary's brain fails to send the c;orrect signals, she has an
imbalance of those muscles, which pulls her spine out of alignment and maintains it out
of. alignment. (Tr. 165) With neuromuscular scoliosis, unlike fixed scoliosis, the
Beneficiary can be stretched. If she is laid on the floo.r, her spine can be straightened.
(Tr. 67) The Beneficiary has physic'al therapy to keep her spine straight by stretching
3
and strengthening her muscles. (Tr. 20, 67) Physical therapy is therapy that will
continue to improve the Beneficiary's function and improve her quality of life. (Tr. 167)
Scoliosis can interfere with respiratory function and even gastrointestinal
function. (Tr. 166) It can leadJo diminishing lung capacity, putting pressure on the heart,
and restricting physical activities. As the spine curve progresses, it can cause the hip
bones to come out of their sockets .. The curving can continue until her organs are
crushed and she dies. (Tr. 21) In the summer of 2010, the stopped
attending physical therapy. The orthopedist noticed that the level of curvature increased
from 31 o to 40. o (fr. 64, 66) As the scoliosis gets worse, the possibility of surgery
increases because the ribs start to compress the internal organs. (Tr. 109) An individual.
who has reached skeletal maturity, which occurs at age 20 or in one's early 20s, is less
likely to have their case worsen. Physical therapy is crucial to the Beneficiary, age 15, to
strengthen her legs, muscles, and hips.
II. AMOUNT OF CLAIM
The amount in dispute was $1,327.44. (Exs. 2, 13, 16, 19, and 20, Tr. 227) At
hearing, the amount claimed was acknowledged to be less than.$2,000. The physical
therapy sessions are billed at $80 per 30-minute session. (Tr. 72) The same physical
therapist providing physical therapy services in a clinical setting charges $300 per 3D-
minute session. (Tr. 73, 128) There is no increase in the cost of the physical therapy
session due "to the use of a horse. The horse and volunteers are provided without fee.
Ill. PROCESSING OF CASE
In March 2011, Leslie R. Roberts, Esquire was retained as legal counsel by
Appellant's parents. (Ex. 21) On April 18, 2011, a hearing was requested. (Ex. 23) On
July 1, 2011, TMA provided a Statement of Position. (Ex. 31) On July 13, 2011, the
case file was forwarded to DOHA and was assigned to me on July 26, 2011. It was not
possible for the case to proceed in September 2011. Additional attempts to set the
matter for hearing in October 2011 were limited due to a lack of a DoD budget. Once a
budget was secured, all parties were unavailable for a hearing date in late "October
2011.-0n October 12, 2011, Appellant's attorney withdrew from the case. Appellant was
"given time to secure a new attorney .. On November 20, 2011, Appellant's counsel
provided a notice of appearance. In January"2012, Appellant's attorney was involved in
a two-week murder trial and was unavailable until February 6, 2012. On January 12,
2012, a Notice of Hearing was issued setting the hearing for February 10, 2012. The
hearing took place as scheduled. On February 21, 2012, DOHA received a copy of the
transcript. (Tr.) On Februar-y 22, 2012, TMA's closing statement was received, and with
that, -the record was dosed.
IV. STATUTORY, REGULATORY, AND POLICY MANUAL PROVISIONS
The TRICARE Basic Program is a supplemental program to the Uniformed
Services direct medical care 10 1071 provides:essentially that the
4
purpose of TRICARE is "to create and maintain high morale in the uniformed services
by providing an improved and uniform program of medical and dental care for mem!>ers
and certain former members of those services and for their dependents." The Basic
Program is similar to private insurance programs, and is designed to p.rovide financial.
assistance to TRICARE beneficiaries for certain prescribed care obtained from civilian
sources. 32 CFR 199.4 (a):
TRICARE benefits are authorized by Chapter 55 of Title 10, United States Code,
and implemented by Title 32, Code of Federal Regulations, Part 199 (32 CFR 199). The
burden of proof is on the Beneficiary to establish entitlement to benefits by substantial
evidence. 32 CFR 199.10{a)(3).
TRICARE will pay for medically necessary services and supplies required in the
diagnosis and treatment of illness or injury. 32 CFR 199.4(a)(1). Services and
supplies not medically or psychologically necessary for the diagnosis or treatment of a
covered illness or injury are specifically excluded from coverage by TRICARE. 32 CFR
199(g)(1).. .
Care must be medically necessary and apprOpriate to be cost-shared. 10 U.S.C.
. 1079(a)(13); 32 CFR 199.4(a)(i). Medical necessity is defined in 32 C.F.R.
199.2(b} as "[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 af)d treatment of illness,
injury, pregnancy, and mental disorders or that are reasonable and adequate for well-
baby care." The determination of whether the services are reasonable and necessary
should be made in consideration that a physician has determined that the services
ordered are reasonable and necessary.
Appropriate medical care is defined in 32 C.F.R. 199.2{b) as:
(i) Services performed in connection with the diagnosis or treatment of
or injury, mental disorder, or well-baby care which are
in keeping with the generally accepted norms for medical practice in the
United States;
(ii) The authorized individual professional provider rendering the medical
care is qualified to perform such medical services by reason of his or her
.training education and is licensed or certified by the. state where the
service is rendered or appropriate national organization or otherwise
meets CHAMPUS standards; and
(iii) The services are furnished economically. For purposes of this part,
"economically" means that the services are furnished in the least
expensive level of care or medical environment adequate to provide the
required medical care regardless of whether or not that level of care is
covered by CHAMPUS ..
5
Tricare Policy Manual 6010.54-M, August 1, 2002, Chapter 7, Section 18.1
Rehabilitation- General, II Policy:
A. Section 704 of the FY02 National Authorization Act (NOAA),
Public Law 107-107, states the Department "may" provided any
rehabilitative therapy to improve, restore, or maintain function, or to
minimize or prevent deterioration of function, of a patient when prescribed
by a physician. Any for tne purpose of improving restoring,
maintaining, or preventing deterioration of function, must be medically
necessary and appropriate .medical care. The rehabilitation therapy must
be rendered by an authorized provider, necessary to the establishment of
a safe and effective program in connection with a specific
medical condition, provided at a skilled level and must not be custodial
care or otherwise excluded from coverage (e.g., exercise or able to be
provided at a level).
F. The following therapies and services rendered by an employee of an
authorized institutional .provider may be cost-shared when part of a
. comprehensive rehabilitation treatment plan:
1. Physical therapy.
Tricare Policy Manuaf 6010.54-M, August 1, 2002, .Chapter 7, Section 18.2
Physical Medicineffherapy, II. Description:
C. Physical therapy to improve, restore, or maintain functions, or to
. minimize or prevent deterioration of function of a patient when prescribed
by a physician is covered in accordance with the rehabilitative therapy
provisions found in Chapter Section 18.1.
Ill. Policy
A. Benefits payable for inpatient or outpatient physical therapy
services that are determined to be medically necessary for the treatment
of a covered CO!ldition, and that are directly and specifically related to an
active written regimen.
B. Physical therapy services must be prescribed by a physician and
professionally administered to aid in the recove,-y from disease or injury to
help the .Patient in attaining greater self-sufficiency, mobility, and
productivity through exercises and other modalities intended to improve
muscle strength, joint motion, coordination, and endurance.
C. If physical therapy is performed by other than a physician, a
physician (or other authorized individual professional provider acting within
6
the scope of his/her license) should refer the patient for treatment and
supervise the physical therapy.
TMA employees have no authority to .overturn published DoD Regulations or
TRICARE policy. Likewise a DoD administrative judge serving as a TRICARE Hearing
Officer does not have the authority to overturn a published DoD Regulation or TRICARE
~ ~ . .
V. STATEMENT OF FACTS
The Beneficiary receives physical therapy at the Rocky Top Therapy Center. The
therapy she receives is .not therapeutic riding. She is not learning to ride a horse: (Tr.
130) The horse is used as a tool and not a modality. (Ex. A, Tr. 143) Physical therapy
for the Beneficiary is absolutely necessary. (Tr. 146)
As previously stated, the Beneficiary suffers from agenesis of the corpus
callosum and Pachygyria, which cause neurological, neuromuscular problems and also
cause developmental delay and seizures. The Beneficiary cannot speak words, but one
can tell when she is frustrated. (Tr. 54) She does smile and make happy sounds. She
loves eating, going to the pool, cartoon/animated movies, toys, and being around her .
siblings and other people. (Tr. 19, 55) She loves to interact with others and can
recognize the -difference between men and women. (Tr. 55, 56) With assistance, she
can stand and walk. She can drink from a cup. (Tr. 26) All of her food is blended in a
food processor- because her oral motor issues prevent her from chewing her food. (Tr.
57) All liquids must ~ v a thickening agent added to prevent choking. (Tr. 232) Outside
of home, she requires the use a wheelchair. (Tr. 59) Each day during the week at 7:15
a.m., the Beneficiary leaves for school
5
and returns at 4:15 p.m. She is in a self-
contained class room with three other children .. (Tr. 60) On Tuesdays and.Thursdays,
she receives 30-minute physical therapy sessions at the Rocky Top Therapy center.
(Tr. 6_2) _
. . .
The Beneficiary's physical therapist has 13 years experience as a physical
:therapist. (Tr. 132) She works with the Fort Worth, Texas school system on Monday,
Wednesdays, and Fridays. (Tr. 84) On Tuesdays.and Thursdays, she provides physical
therapy at the Rocky Top Therapy Center. On weekends, she provides therapy at a
hospital in Decatur, Texas. When school is not in session, she provides physical
therapy to nursing home residents. The therapist is paid for the service she provides,
not for the tools she uses during therapy. In providing therapy, she uses bolsters, balls,
benches, walkers, and barrels .. (Tr. 91-92) Balls are used more for strengthening than
stretching. (Tr. 115).
The goal was not to teach the Benefldary to ride a horse, but the horse is used
as a dynamic surface, a therapeutic tool for physical therapy. The goals of therapy
included: increasing flexibility of the joints, normalizing muscle tone, improving
coordination-of movements, improving symmetry and sensory-motor integration, helping
..
5
Due to the-Beneficiary's disability, she will remain in the public school system until age 21. (Tr. 237)
7
with righting and equilibrium reactions, maintaining strength and flexibility in her hips, .
and enhancing body awareness. (Ex. 14, page 2, Tr. 21) The horse is used because the
Beneficiary disengages in her physical therapy when other methods are used.
The physical therapy the Beneficiary receives on the horse same physical
therapy she would receive using a therapy ball or bolster "if' she engaged when the
other tools were employed. The goal is to stretch the Beneficiary's muscles: The
therapist is not a hippotherapist. (Tr. 93) If she receives a prescription for hippotherapy,
she sends it back to the doctor because she is a physical therapist. (Tr. 94) She is not a
"physioball therapist" when she uses a physioball and not- a "bench therapisr when
using a bench.
The Beneficiary receives physical therapy twice a week. The therapist's goal is to
get the Beneficiary to walk, with a more important goal of keeping her alive. (Tr. 94) The
cost of therapy is the same whether a ball, barrel, or horse is used. (Tr. 74) Physical
therapy begins with stretching on a ball, but shortly after stretching starts, the
Beneficiary becomes bored, Jeans over, and stops participating. in the therapy. In a
clinic<d setting, as in an office setting; she resists and fails to cooperate witt! the physical
therapy. (Tr. 23) She "shuts down." (Tr. 168) A previously s_tated, her mental-level tests
place her in the high-infant-toddler-,preschool range. (Tr. 20, 56) After a brief period in
clinical therapy, she closes her eyes; expresses frustration,. lies down, and no longer
actively participates in the therapy. Therapy has little effect without her cooperation and
participation. (Tr. 68) The Beneficiary is equivalent to a toddler and getting a toddler to
par:ticipate in an activity "they do not wish to participate in is a difficult and ofteri
impossible task.
At the Rocky Top Therapy Center, after warming _up, the walks with
assistance up a ramp and is-placed on a horse. Volunteers then hold the Beneficiary's
feet or legs while she is on the horse as the horse is led around in a circle. Due. to the
horse's width, Beneficiary's legs are constantly stretched. (Tr. 1 00) Ttw movement of
the horse's pelvis gives three-dimensional movement to the Beneficiary's pelvis, which
is not possible with the other tools. (Tr .. 100) As the horse f"DOVes, the Beneficiary's
calve, thighs, back extensors, neck extensors . and trunk muscles are all engaged. (Tr.
1 02) The horse's withers act like wedges that are used in office settings, to bring
individual's pelvis more anterior. (Tr: 102) Remaining upright and straight exercises the
Beneficiary's back and trunk.
The Beneficiary is responsive to physical therapy while on a horse.. It is
invaluable to keepher engaged during the treatment session. (Tr. 171) The Beneficiary
can recognize environments and recognize familiar surroundings. (Tr. 168) On a horse,
the Beneficiary. enjoys the therapy and allows the therapist-to do all the things
necessary to address the Beneficiary's physical condition. (Tr. 23) She sits up
completely and independently the entire session, thereby. working the muscles of her
back and legs. (Tr. 99) Even after a full session of 30 minutes on the horse, she is still
actively engaged in her therapy. (Tr. 101, 103) If the Beneficiary responded better to
other tools such as barrels or balls, the therapist would use those tools. (Tr. 137) The
8
therapist is using the tool best suited for this particular beneficiary due to her mental
challenges.
The Beneficiary has gone to various therapists in numerous locations due to the
changes caused by her father's military-related moves. The on.ly thing that keeps her
engaged and responsive is the horse. (Tr. 69) The Beneficiary will not actively engage
with other tools, as she does while on a horse.- The. Beneficiary's engagement in her
physical therapy may be due to a number of factors, including: 1. her visual system,
which is engaged by the changing events around her occurring while .on the horse, and
2. constant movement, which would not occur in an office setting. (Tr. 149, 170)
Additionally, she is surrqunded by volunteers, and the Beneficiary enjoys. being around
people. The horse not only provides motion, but also provides warmth
6
, which is
missing when other therapy tools: are used. Her engagement may also be influenced in
part by the way people relate to animals. (Tr. 140) The purpose of the physical therapy
is to put her on a fool to manipulate her body by stretching her legs and maintaining
proper posture to straighten her spine. (Tr. 22)
Wi.thout physical. therapy, the Beneficiary's spine will continue to curve and
compress her organs, which would lead to surgery or even death. (Tr. 118-119) Without
physical therapy, it is likely that, at some point, she .will require surgery to remove ribsto
relieve the pressure. Surgery also poses the risk that the Beneficiary would no longer be
able to stand or walk. (Tr. 67) If the curvature increases, they may have to fuse the
Beneficiary's spine to her hips. (Tr. 67) Another possible course of treatment would be
to fuse her backbone from neck to lumbar, taking all flexibility out of her back. (Tr. 185)
With such surgery, there is a 50 percent chance or greater that the Beneficiary will not
walk, stand, or transition, which would result in additional.cost for equipment to assist
with transitions. (Tr. 239) Not being able to transition from bed to standing or standing to
sitting would have serious ramifications on the Beneficiary's overall lifestyle and well
being. Additional equipment would be necessary to assist her with these transitions
because her parents would no longer be able to handle the transitions unaided.
The Beneficiary's parents provided documents related to hippotherapy. in response
to TMA's request for information about hippotherapy. This response was made in an
attempt to comply with all TMA requests made of the parents and not a. claim that the
Beneficiary's physical therapy was hippotherapy.
Had the Beneficiary not been thedependent of an active-duty military member,
she could have qualified for a Medicaid
7
waiver for her treatment..(Tr. 233) There is a
waiting list for the waiver and each time the Beneficiary moved to a new location due to
her father's military assignment, she went to the bottom .of the list. She is now number
26,000 on one waiting list and 12,000 on another. (Tr. 233) With each permanent
change of station (PCS), her wait for the waiver started anew.
6
During the therapy session, a blanket is used, but not a saddle. (Tr. 99)
7
Medicare would cover physical therapy using a horse. (Tr. 234)
9
The Beneficiary's mother has three wishes for her daughter: first, that her
daughter could say a few words; second, that she could take a few steps independently;
and last, to be able to curl the food. from her plate onto her spoon.
8
(Tr. 63)
VI. BRIEF SUMMARY OF PARTIES' ARGUMENTS
. A. Beneficiary's position. The Beneficiary contended that services provided
were not hippotherapy, but physical therapy utilizing a horse as a treatment tool. The
use of the horse is not a modality, but a tool. The horse is used in place of therapy balls,
barrels, benches, boisters, or wedges. The physical therapist is providing physical
therapy and would use the tools best for the Beneficiary. The difficulty is the Beneficiary
disengages when the other tools are used, but remains engaged when on a horse.
B. Appellee's position. Appellee asserts the services provided were
hippottierapy, and as such, the treatment provided was not standard for the.
Beneficiary's condition. AdditioAally, hippotherapy has n9t been proven safe and
effective by reliable evidence, as required by TRICARE regulations. For these reasons,
the Beneficiary did not meet TRICARE coverage criteria and therefore should be denied
cost-sharing.
VII. DISCUSSION OF ISSUES
Whether the. treatment e i ~ g provided is physical therapy or.hippotherapy:
The Beneficiary is receiving physica(therapy, not some alternate type of therapy.
Physical therapy for the Beneficiary is absolutely necessary. (Tr. 146) Therapy is simply
trying to loosen the Beneficiary's muscles, straighten her spine, and strengthen her
body so that she can walk, stand, sit, and get out of bed on her own. However, even the
best treatment has little or no value If the individual will not engage in the therapy.
Physical therapy is not an unproven drug, device, medical treatment or procedure.
There is no question a therapist can use a rubber ball, bench, barrel, wedge, or other
tool the therapist feels is an appropriate tool to use in doing her job. (Tr. 253) Physical
therapy done in a pool is fine, but when done on a horse, it does not suddenly become
some alternative, strange therapy. The therapist is paid for the service she provides, not
the tools she uses.
The Beneficiary is receiving physical therapy to remedy her scoliosis. The issue
is not whether the Beneficiary is entitled to physical therapy, it is just what she is sitting
on when her legs are stretched; and the. therapy is done. (Tr. 250) Her use of the horse
is not a modality, u t ~ physical therapy tool. (Tr. 245-246) If the therapist used other
tools in providing physical therapy, she would not have to justify using those tools.
8
The Beneficiary Is able to lift the spoon and food to her mouth, but is unable to place food on her spoon
without help.
10
Whether the Beneficiary n e e ~ physical therapy:
. As previously stated, the Beneficiary suffers from neuromuscular scoliosis, which
is less likely to worsen once she attains skeletal maturity. The Beneficiary is 15 years
old. Her body is growing and maturing ahd will continue to do so over the next few
years. (Tr. 95) Growth spurts are common for individuals in their mid to late-teens.
Between- now and age 20, physiCal therapy is crucial to strengthen the Beneficiary's
legs, muscles, and - hips. With neuromuscular scoliosis; unlike fixed scoliosis,
Beneficiary can be stretched, and her spine straightened. (Tr. 67) This is why physical
therapy to keep her spine straight by stretching and strengthening her muscles is
important. (fr. 20, 67) At age 20, or in her early 20s, when the Beneficiary obtains
skeletal maturity, her physical disabilities are less likely to increase. (Tr. 240)
Scoliosis can lead to diminishing lung capacity, putting pressure on the heart,
and restricting physical activities. As the spine curve progresses, it can cause the femur
to come away from the hip sockets. The 'curving can continue until her organs are
crushed, and she dies. At some point, surgery will be necessary to remove ribs to
relieve the pressure. Surgery also poses the risk that the Beneficiary would no longer be
able to stand or walk. (Tr. 67) If the curvature increases, fusing the Beneficiary's
backbone becomes a possibility. (Tr. 67) If the Beneficiary cannot sit upright' when
eating, aspiration issues could arise. (rr. 117) Should the Beneficiary fail to get proper
physical therapy, she will need surgery, a cost that would be incurred by the
Government.
Appellee pointed out that cost is not relevant in the discussion of benefits. (Tr.
131) As was stated, treatment could be "extremely expensive, even exorbitantly
expensive," but if medically necessary and reimbursable under TRICARE, it would be.
paid. (Tr. 132) That is true, but to be proper stewards of the taxpayers' dollars, some
recognition of cost must be considered. It seems reasonable that to avoid additional
expensive procedures and surgery in the future, continued physical therapy. now is
. practicable since it is both necessary and reimbursable.
The Beneficiary receives physical therapy twice a week. The therapist uses a tool
which engages the Beneficiary's cooperation. She would use other tools, if they were
effective. The therapist. charges a lower rate than would be charged for therapy
sessions _in an office. There .is no a.dditional charge incurred due to the use of a horse.
Tile horse and volunteers are provided without fee. It is more beneficial to use the horse
as a tool than it is to use a therapy ball, barrel, wedge, or any other tool, because the
Beneficiary engages in her physical therapy on the horse and fails to cooperate with her
treatment in a clinical setting. It cannot be forgotten that even though the Beneficiary is
15 years old, she has the mentai capacity of a toddler-preschool child. It would be a
waste of the Government's money to pay for therapy in a traditional setting for it would
provide no benefit to the Beneficiary.
1.1
VIII. REC.OMMENDED DECISION
After Careful consideration of the record, I recommend the Director, TRICARE,
approve cost-sharing for the Beneficiary's physical therapy. The amount in dispute is
$1,327.44. .
Claude R. HeJnYI
Administrative Judge
TRICARE Hearing Officer
12
March 30, 2012
DATE

APPENDIX C
TMA Final Decision Denying Benefits.

TRICARE
MANACtr.u:.n
,\CTIVITY
OFFICE OJ<' THE ASSISTANT SECRETARY OF
HEAL Til AFFAIRS
7700 ARLINGTON BOULEY ARD, SUITE 5101
FALLS CHURCH, VA 22042-5101
BEFORE THE DIRECTOR
TRICARE MANAGEMENT ACTIVITY
UNITED STATES DEPARTMENT OF DEFENSE
OCT 2 4 2012
Appeal of Beneficiary: Kaitlyn N. Samuels ) TRICARE Management Activity
)
Sponsor: Captain Mark W. Samuels, USNR
Appealing Party: Kaitlyn Samuels
)
) Case N11mber 12-37
) FINAL
This is the FlNAL DECISIO!'f of the TRICARE Management Activity (TMA),
in the TRICARE appeal of Case Number 12-37, pursuant to Title 10, United States Code,
1071- I 1 1 Ob, and Department of Defense Regulation 32 C.F.R. Part 199.10. By delegation, the
authority to issue Decisions pursuant to 32 C.F.R. Part 199.10(e)(l) is vested in the Deputy
Chief, TRICARE Policy & TRICARE Management Activity.
After due consideration of the appeal record, I reject the Recommended Decision of the
Hearing Officer. This FINAL DECISION is, therefore, to deny reimbursement for the
hippo therapy (equestrian therapy) under the TRICARE Basic Program.
BACKGROUND
This appeal involves the denial of TRICARE cost-sharing for equestriart therapy
(hippothcrapy) provided to a 15 year old Beneficiary, dependent daughter of an active duty
service member suffering from a variety of severe neurological and muscular disorders. The
original TMA denial of cost-sharing is based on findings that: (1) the Beneficiary received
hippotherapy; (2) hippo therapy is not medically necessary and appropriate for treatment of the
Beneficiary's medical condition; (3) hippothcrapy for the treatment of the Beneficiary's medical
condition has not been proven safe and effective by reliable evidence; and (4) hippothcrapy for
treatment of the Beneficiary's medical condition is an unproven treatment.
The amount in dispute is appro.ximately $1 ,327.44. This amount is based.on the billed
charges for services provided from April 23, 2009, through, March 31, 20 I 0. The Hearing
Officer reviewed the information presellted by both sides and recommended that TRICARE
approve cost-sharing for hippotberapy as a medical benefit- a fonn of physical therapy. I do not
agree that hippothcrapy is a proven medical benefit as a fonn of physical therapy for the
purposes of the TR1CARE Basic cdicul Program.
FACTUAL BACKGROUND
The Beneficiary is the minor child of an active duty member of the United States Navy.
She was bom in 1996. At four months, her parents no.ticed that she did not reach for her toys,
however doctors did not believe that there was anything out of tl1e ordinary. When the
Beneficiary was six months old, her neurologist ordered an MRI and diagnosed her with a rare
brain malfonnation. Her symptoms include seizures, feeping problems, difficulties holding her
head erect, sitting, standing, and walking. Additionally she has severe impainnents in her mental
development. Her mental level of testing places her in the high infant-toddler- preschool range.
Her muscles do not function properly and she suffers from scoliosis and cerebral palsy. The
Beneficiary's parents are tbe authorized representatives (Representatives) of the Benef1ciary.
On September 1, 2009, one of the Beneficiary's treating physicians prescribed
hippotherapy. (Exhibit 5, page 13-) On the same date the treating physician "filled out another
prescription to treat the Beneficiary's cerebral palsy. On this second prescription the word
"hippotherapy" is crossed out and the words "physical therapy" substituted. (Exhibit 4, page 3.)
An April 23, 2009, physical therapy evaluation indicated that the Beneficiary was involved with
therapeutic riding and hippotherapy. (Exhibit 4, page 1.) Hippotherapy is not yet recognized
within the meaning of the TRICARE regulation as a proven medical treatment for the
Beneficiary's condition.
TI1e Managed Care Support (MCS) contractor responsible for processing the
Beneficiary's claims notified the Representatives that claims from April 23, 2009, through,
March 31, 20 I 0, were denied because the services provided to the Beneficiary were not a
covered benefit in accordance with TMA policy. (Exhibit 5, pages 8 - 12.) In July 2010, the
Representatives appealed the claims denial. (Exhibit 5, page 1.) In a notice dated August 27,
201 0, the MCS contractor infonned the Representatives that the contractor had not received Ute
appeal request and advised that it be resubmitted. (Exhibit 5, page 3.) After the Representatives
resubmitted the appeal the MCS contractor determined that the Beneficiary's claims wouJd not
be adjusted and that the appeal was denied. The basis for the denial of the appeal was because
the MCS contractor determined that the Beneficiary was receiving hippothcrapy which is a non-
covered benefit. (Exhibit 6, page 2.)
Tile Representatives further appealed this decision to TMA on October 15, 20 l 0.
(Exhibit 6, page l.) In their Fonnal Review request the Representatives identified the following
reasons why the claims should be cost-shared by TMA (Exhibit 6, page 1.):
The services provided to the Beneficiary were billed as physical therapy using
physical therapy billing codes for physical therapy services which were provided
by a licensed physical therapist. .
The TMA manuals do not specifically state that hippotherapy is a non-covered
benefit.
2
The TMA manuals do. not indicate that physical therapy cannot take place on a
horse.
Physical therapy on a horse should be considered the same as other physical
therapy "dynamic surfaces" such as a therapy ball or balance board.
The physical therapy the Beneficiary received was the same as the Beneficiary
would have received in the physical therapy room on a therapy bal1.
If it is TMA policy to deny therapeutic activities and exercises based on the
location in which they are perfom1ed; i.e., at an equestrian arena, then TMA needs
to clearly list the location as a non-covered service.
According to the TMA website and TMA manuals ruppotherapy does not ex:ist.
The MCS contractor cost-shared these services for a year before rejecting claims.
By letter dated December 6, 2010, TMA informed the Representatives that their appeal
was premature. Consequently, the matter was referred to the MCS contractor with direction to
issue a reConsideration detcnnination. (Exhibit 8, page 1.)
In the reconsideration dctetmination the reviewer agreed with the initial decision to
disallow cost-sharing for hippotherapy. The reviewernoted that hippotherapy is not a covered
benefit in accordance with the TRICARE Policy Manual, Chapter 1, Section 1.1 and Chapter 1,
Scction2.1. (ExhiM9,pagc5.)
The Representatives, in a letter to TMA dated December 15, 2010, requested a formal
review. In support of their position that the hippotherapy should be cost-shared by TMA, the
Representatives noted that the Beneficiary was receiving pllysieai therapy - the use of a horse
was a tool, not a modality; the horse is used rather than therapy balls, barrels, benches, bolsters,
wedges, etc. Additionally, the request noted that previous claims were cost-shared by two
different MCS contractors and requested TMA to continue to cost-share this type of physical
therapy. (Exhibit 1 0, page 1.)
In January 201 I, the Representatives were informed by TMA that additional infomiation
was needed to make a determination regarding their appeal. Specifically, TMA requested:
[RJeliable evidence that hippotherapy, a physical therapy modality, has gained
national acceptance as a standard of medical practice in the treatment of the
Beneficiary's diagnosed condition. For purposes ofTRICARE, reliable evidence
includes:
I) Well controlled studies of clinically meaningful cndpoi11ts, published in
refereed medical literature
2) Published fonnal technology assessments
3
3) The published reports of national professional medical
associations
4) Published n a t i o n ~ medical policy organization positions
5) The published reports of national expert opinion organizations
(Exhibit 12.) .
On January 31, 201 1, Representatives responded to the TMA request and submitted
various documentation including the following:
Documentation from the treating physical therapist stating that the goals for the
Beneficiary were to increase flexibility of joints, .nonnalize muscle tone, improve
coordination of movements, improve symmetry, improve sensori-motor integration, help
with righting and equilibrium reactions, and enhance body awareness. (Exhibit 14, page
2.)
Documentation from the Beneficiary's treating pediatric neurologist requesting that the
hippotherapy be approved because the therapy is an approved therapy to treat the
Beneficiary's Hemiplegic Cerebral Palsy due to agenesis of the Corpus Callosum.
(Exhibit 14, page 3.)
A chart indicating that Medicaid pays for hippotherapy in those cases where a physical
therapist is present. (Exhibit14, page 6.)
A PubMcd document which describes hippotherapy. (Exhibit 14, page 7.)
Abstract, Therapeutic Interventions in Cerebral Palsy. (Exhibit 14, page 8.)
Abstract, Hippotherapy: A Therapeutic Treatment Strategy. (Ex.hibit 14, page 13.)
Abstract, The Effects of a 5-Week Therapeutic Horseback Riding Program on Gross
Motor Function in a Child with Cerebral Palsy: A Case Study. (Exhibit 14, page 24.)
Al1icle, Complementary and A ltcmative Therapies for Cerebral Palsy. (Exhibit 14, page
29.)
Article, Tall & Proud. (Exhibit 14, page 37.)
Article, A Helping Hand. (Exhibit 14, page 41.)
Research Report, The Effect of Hippotherapy on Ten Children with Cerebral Palsy.
Abstract, Immediate and Long-Term Effects ofHippotherapy on Symmetry of Adductor
Muscle Activity and Functional Ability in Children With Spastic Cerebral Palsy.
Qualitative Study, Effects of hippotherapy on people with cerebral palsy from the users'
perspective: A qualitative study. (Exhibit 14, page 67.)
Pilot Study, Effect of an equine-movement therapy program on gait, energy expenditure,
and motor function in children with spastic cerebral palsy: a pilot study. (Exhibit 14,
page 86.)
Abstract, Improvements in Muscle Synm1etry in Children with Cerebral Palsy After
Equine-Assisted Therapy (Hippollierapy). (Exhibit 14, page 95.)
Research Report, The Effect of Hippotherapy on Functional Outcomes for Children with
Disabilities: A Pilot Study. (Exhibit 14, page I 04.)
Abstract, Changes. in Dynamic Trunk/Head Stability and Functional Reach After
Hippotherapy. (Exhibit 14, page 11 L)
FORMAL REVIEW DECISION
TMA, afl;er reviewing the documents submitted by the Representatives, found that TMA
could not cost-share the hippotherapy for the period in issue because this type oftrcatment is not
a proven treatment and it is not a C!JVered TRICARE benefit
TRICARE d.efincs reliable evidence 'at 32 C.F.R. Part 199.2. As used in Sec.
199 .4(g)(l5), the term reliable evidence means only: The hierarchy of reliable evidence of
proven medical effectiveness, establi'shed by (i) 'through (v) of this paragraph, is the order of the
relative weight to be iiven to any particular source. With respect to clinical studies, only those
reports and articles containing scientifically valid data and published in the refereed medical and
scientific literature shall be considered as meeting the requirements of reliable evidence.
Specifically not included in the mea.ning of reliable evidence are reports, articles, or statements
by providers or groups of providers containing only abstracts, anecdotal evidence or personal
professional opinions. Also not included in the meaning of reliable evidence is the fact that a
provider or a number of providers have.elected to adopt a drug, device, or medical treatment or
procedure as their personal treatment or procedure of choice or standard of practice. (Exhibit
18.)
1l1e TMA Appeals, Hearings, and Claims Collection Division, reviewed each of the
articles submitted by Representatives in their appeal. The Formal Review Decision noted that
some of the articles did indeed meet the TMA definition of reliable evidence. However, several
of the other articles did not meet the TMA definition of reliable evidence. Those articles that did
meet the definition of reliable evidence were carefully reviewed by either the TMA Medical
Benefits and Reimbursement Systems Office (MB&RB) or the TMA Appeals, Hearings, and
Claims Collection Division. Based on that review, it has been detcnnincd that hippothcrapy is
5
currently considered unpro'{cn within the meaning ofTRICARE regulation and policy. As noted
byTMA MB&RB, there is a lack of reliable evidence establishing that hippotherapy is a proven
treatment for the Beneficiary's medical condition. (Exhibit 18, page 7.) Consequently, it was.
TMA 's decision to not approve cost-sharing for the hippo therapy provided from Apri1'23, 2009,
through March 31, 2010, and continuing, because the hippotherapy provided is not a proven
treatment and is not care that can b ~ cost-shared by TMA. (Exhibit 18, page 7.)
HEARING
By letter dated April 18, 2011, counsel for the Representatives requested a .hearing.
(Exhibit 23.) The hearing was held on February 10, 2012. Testifying at the hearing were the
Beneficiary's parents, the treating pediatric neurologist, and a treating physical therapist.
APPEALING PARTY POSITION
The Representatives for the Appealing .Party assert that physical therapy is a TRICARE
covered benefit and that the Beneficiary was receiving physical therapy even though the physical
therapy involved a horse as a tool, not a modality. The appealing party contends that the horse is
used rather than therapy balls, barrels, benches, bolsters, wedges, etc. Further, the appealing
party contends that because previous claims were cost-shared TMA should continue to cost-share
this type of physical therapy.
TMA POSITION
During the hearings, the TMA position was that hippotherapy is unproven pursuant to
TRICARE regulation and policy because there is a lack of reHablc evidence documenting that
hippotherapy is a proven treatment. TMA has previously reviewed the TRICARE policy
concerning cost-sharing of hippotherapy. Based on that review, it was detennincd that
hippotherapy docs not meet TRICARE cost-sharing criteria as a proven treatment regardless of
the diagnosis. The review noted th<tt there was insufficient reliable evidence documenting the
safety and efficacyofhippotherapy.
I agree that the therapy is still considered unproven under the Basic Program. In making
my Final Decision, I have reviewed the Recommended Decision issued by the Hearing Officer. I
find that the Hearing Officer misapplied some of the statutes, regulations and policies that
detennine the benefits of the TRICARE basic program in making his recommendation. In
expanding his interpretation of what constituted physical therapy, he inappropriately delennined
that TRICARE should cover the therapy under ~ e TRICARE Basic Program. I reject this
analysis.
As stated in the Factual Background section, MB&RB has previously reviewed
TRICARE coverage of hippotherapy. Based on the findings of their reviews, which included a
review for the treatment of cerebral palsy, MB&RB concluded that hippotherapy does not at this
time meet TRlCARE coverage criteria as a proven treatment regardless of the diagnosis.
Specifically, MB&RB noted tllat there is insufficient reliable evidence demonstrating the safety
and efficacy of hippotherapy. Moreover, MB&RB found that hippotherapy is a stand-alone
6
modality, and it is inconsequential whether it is referred to as an otherwise covered service such
as physical therapy. Additionally, the fact that Medicaid may cover hippotherapy services in
some cases is important from the of infonnation about other third party payers; however
TRICARE policy and benefits are not based upon other third-party payers because those payers
arc not required to follow reliable standards.
DIS.CUSSION
Based upon my review of the medical literature, including the materials submitted by the
Representatives, I have determined that hippothcrapy is not a covered '!ledicaJ benefit under the
TRJCARE Basic Program because it is not medically or psychologically necessary.
DIRECTOR'S DECISION
The FfNAL DECISION of the Deputy Chief, TRICARE Policy and Operations, is to
deny TMA cost-sharing of the hippothcrapy provided to this Beneficiary from April 23, 2009,
through, March 31, 2010, as a medical benefit under the Basic Program because it is not a proven
medical treatment. Based upon- the record before me, this appears to be the most rational
conclusion.
Issuance of this FINAL DECISION completes the administrative appeal process w1der 32 C.F.R.
Part 199.10 and no further administrative appeal is available.
Michael W. O'Bar
Deputy Chief
TRJCARE Policy and Operations
7'

Kaitlyn Samuels V Department of Defense

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Kaitlyn Samuels V Department of Defense

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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

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