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Whither the "Improvement Standard"? Coverage for Severe Brain Injury after Jimmo v. Sebelius
Joseph J Fins1, Megan S Wright1, Claudia Kraft1
1Joseph J. Fins, M.D., M.A.C.P., is The E. William Davis, Jr. M.D. Professor of Medical Ethics and Chief of the Division of Medical Ethics at Weill Cornell Medical College where he is a Tenured Professor of Medicine, Professor of Medical Ethics in Neurology, Professor of Health Care Policy and Research, and Professor of Medicine in Psychiatry. He Co-Directs, the Consortium for the Advanced Study of Brain Injury (CASBI) at Weill Cornell and Rockefeller University, is a Senior Research Scholar in Law at the Yale Law School, an elected Member of the Institute of Medicine of the National Academy of Sciences, a Fellow of the American Academy of Arts and Sciences and an Academico de Honor (Honored Academic) of the Real Academia Nacional de Medicina de Espana (the Royal Academy of Medicine of Spain). He received his B.A. with Honors from Wesleyan University (Middletown, CT) and M.D. from Cornell University (New York, NY). Megan S. Wright, Ph.D., is a J.D. candidate (2016) at Yale Law School (New Haven, CT). She earned a Ph.D. in Sociology from the University of Arizona (Tucson, Arizona). Claudia Kraft is a third-year law student at Yale Law School (New Haven, CT). She received a B.A. in Human Biology from the University of Virginia (Charlottesville, VA). Alix Rogers, M.Phil., is concurrently pursuing a J.D. at Yale Law School (New Haven, CT), and a Ph.D. in the History and Philosophy of Science at the University of Cambridge (Cambridge, United Kingdom). She holds a M.Phil from the University of Cambridge (Cambridge, United Kingdom), and a B.A. from the University of Pennsylvania (Philadelphia, PA). Marina Romani is a J.D Candidate (2016) at Yale Law School (New Haven, CT). She received a B.S. in Biology from Dartmouth College (Hanover, NH). Samantha Godwin, J.D., is a Ph.D candidate and Gates Cambridge Scholar at Cambridge University and an LL.M student at Yale Law School. She received her B.A. and MA from University College London department of philosophy and her J.D. from
Abstract:
As improvements in neuroscience have enabled a better understanding of disorders of consciousness as well as methods to treat them, a hurdle that has become all too prevalent is the denial of coverage for treatment and rehabilitation services. In 2011, a settlement emerged from a Vermont District Court case, Jimmo v. Sebelius, which was brought to stop the use of an "improvement standard" that required tangible progress over an identifiable period of time for Medicare coverage of services. While the use of this standard can have deleterious effects on those with many chronic conditions, it is especially burdensome for those in the minimally conscious state (MCS), where improvements are unpredictable and often not manifested through repeatable overt behaviors. Though the focus of this paper is on the challenges of brain injury and the minimally conscious state, which an estimated 100,000 to 200,000 individuals suffer from in the United States, the post-Jimmo arguments presented can and should have a broad impact as envisioned by the plaintiffs who brought the case on behalf of multiple advocacy groups representing patients with a range of chronic care conditions.
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