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.
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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.
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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
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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;
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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.

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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

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