Special Master Appeal Decisions

362. Who determines the appropriate model for predicting premorbid functioning?

During neuropsychological testing, the examining neuropsychologist must estimate the Player's previous level of performance using the ACS Test of Premorbid Functioning ("TOPF"), and the clinician should select a model based on the patient's background and his or her current level of reading or language impairment. The selection between models is a matter of fine clinical judgment and the Settlement Agreement explicitly vests that choice between statistical models with the neuropsychologist. The Claims Administrator defers to the neuropsychologist's choice of models. However, if the particular facts of a claim indicate the neuropsychologist's choice between models is medically unsound, meaning without any articulable medical rationale, the AAPC may question that selection. In that case, the AAPC must provide a detailed explanation why the neuropsychologist's choice of model is inappropriate. Click here for additional information and to read the Special Master's full decision on this topic.

363. How much deference does the Claims Administrator give to the Diagnosing Physician's determination that neuropsychological testing is medically unnecessary?

Generally, deference is given to the determinations made by a diagnosing Qualified MAF Physician because of the doctor’s eminence and training, as well as his or her personal evaluation of the Player. However, if the Qualified MAF Physician indicates that neuropsychological testing is medically unnecessary because of the severity of the Player’s dementia, the Claims Administrator has the obligation to determine if that conclusion was “reasonably determined.” In this context, the Qualified MAF Physician’s conclusion is “reasonably determined” if the doctor’s conclusion can be identified as an application of the Settlement’s narrow exception to the testing requirement. In other words, it was reasonable for the doctor to conclude that the testing would not generate valid results (note: stating that a task or test will be difficult for a Player is not the same as saying the testing would not generate valid results). Click here for additional information and to read the Special Master's full decision on this topic.

364. How should a Qualified MAF Physician apply the Generally Consistent standard when making a Qualifying Diagnosis? How will the Claims Administrator confirm that a Qualifying Diagnosis is Generally Consistent with the Settlement criteria?

“Generally consistent” does not mean the diagnosis must meet the same requirements as the BAP Battery, but requires the diagnosing Qualified MAF Physician to exercise reasoned, individualized, and clinical judgment in administering testing and rendering a diagnosis that is generally consistent with the BAP battery and diagnostic criteria. The physician cannot loosely construe the criteria that have been set forth in the Settlement Agreement. The test for which deviations are generally consistent is not a mechanical one. If the diagnosis deviates from the Settlement criteria, the physician must provide a written explanation. This will enable the Claims Administrator to defer to the diagnosing physician’s judgment.

The explanation must be an accounting of why the diagnosing physician believed that the deviation was appropriate. The Claims Administrator will determine whether the explanation’s rationale and its completeness satisfy this requirement. Deference to articulated, individualized, and reasoned medical judgments will be customary. For Level 1.5 and 2 Neurocognitive Impairment diagnoses supported by neuropsychological testing that deviates from the BAP test battery, the Claims Administrator (and the AAP and/or AAPC, where necessary for consistent and transparent analysis) will evaluate the neuropsychological test battery as a whole and its application to the Retired NFL Football Player. This analysis will focus on the goals of the tests and their relationship to establishing a reliable and meaningful exam (click here for an example of how this principle was applied on appeal).

Click here for additional information and to read the Special Master's full decision on this topic.

365. Can new evidence or records, not considered by my physician, that show behavior or activity occurring before my Qualifying Diagnosis result in a Denial of my Claim?

Evidence establishing a pattern of behavior that is inconsistent with the factual bases of a diagnosis will always raise questions about a claim’s legitimacy. However, new evidence that shows limited episodes of behavior or activity well before the date of a Qualifying Diagnosis will generally not invalidate a Diagnosis of Neurocognitive Impairment. Click here for additional information and to read the Special Master’s full decision on this topic.

366. Can new evidence or records, not considered by my physician, that show behavior or activity occurring after my Qualifying Diagnosis result in a Denial of my Claim?

In order for new evidence of a Player’s conduct after his Diagnosis to undermine that Diagnosis, it must establish a pattern of behavior that is inconsistent with the factual basis of the Diagnosis. Second-guessing the diagnosing physician’s considered views about the level of functional impairment would require strong countervailing proof to invalidate the Diagnosis. Click here for additional information and to read the Special Master's full decision on this topic.  

367. Does my evaluating physician need to address my medication side-effects or other conditions that may affect my cognitive function when deciding whether I have a Qualifying Diagnosis?

Where the Player, at the time of his Diagnosis, is taking medications with known side-effects on cognition, uses alcohol or other substances, or where there is evidence of pain or sleep loss at the time of diagnosis that is potentially closely related to a Player’s observed functional losses, the diagnosing physician should offer some explanation of the role, if any, of such factors in the Diagnosis. The Claims Administrator should then defer to the clinician’s judgment or ask for more information about those factors if the explanation is insufficient. Click here for additional information and to read the Special Master's full decision on this topic.

368. If my performance on validity test measures is determined to invalidate my neuropsychological testing, can that testing support a Qualifying Diagnosis?

No. For Levels 1.5 and 2 Neurocognitive Impairment, Players must meet the requirements of the four diagnostic criteria set forth in Exhibit A-1 to the Settlement Agreement. Validity measures are explicitly required by the Settlement as part of the neuropsychological test battery. Neuropsychological test results must supply valid measures of cognitive performance to support a Qualifying Diagnosis, and a diagnosing physician or examining neuropsychologist must provide an explanation if concluding the test results are valid despite performance or behavior that otherwise may indicate invalidity. 

The Claims Administrator and Special Masters may ask the AAP and/or AAPC for advice on whether a Player’s neuropsychological testing can be considered valid. Click here for additional information and to read the Special Master's full decision on this topic. 

Reminder: For Level 2 Neurocognitive Impairment diagnoses made outside the BAP only, the diagnosing physician can certify that certain neuropsychological testing required in the BAP was medically unnecessary because the Retired NFL Football Player's dementia was so severe.

369. When will the Claims Administrator apply the Stroke offset?

The Settlement Agreement directs that the word Stroke is defined by the World Health Organization’s International Classification of Diseases, 9th Edition (ICD-9) or the World Health Organization’s International Classification of Diseases, 10th Edition (ICD-10). To apply the Stroke offset, the Claims Administrator must: (a) find evidence of the event in the medical records, and (b) determine that the Player suffered a Stroke under the Settlement’s precise meaning of that term. If the Claims Administrator determines the medical records show the Player suffered a Stroke, the Player has the burden of showing by clear and convincing evidence that his Qualifying Diagnosis was not causally related to the Stroke. Click here for additional information and to read the Special Master's full decision on this topic.

370. Can one diagnosis be used as proof that a Player had a different Qualifying Diagnosis?

No. The Settlement criteria for each Qualifying Diagnosis requires distinct proof. Contemporaneous proof of each Qualifying Diagnosis must be evaluated on its own terms, paying attention to the actual evidence before the diagnosing physician and the Claims Administrator. For example, evidence of an Alzheimer’s Disease Diagnosis is not itself indicative of an earlier Qualifying Diagnosis of Level 1.5 Neurocognitive Impairment under the Settlement because the criteria for Alzheimer’s Disease and Level 1.5 have very different technical specifications. Click here for additional information and to read the Special Master's full decision on this topic.

371. What are the Slick criteria and how is the Slick criteria analysis performed?

Neuropsychologists Daniel J. Slick, Elisabeth M.S. Sherman, and Grant L. Iverson developed nine criteria (a.k.a. the “Slick criteria”) to help identify malingering — “false or grossly exaggerated physical or psychological symptoms that are voluntarily produced, motivated by external incentives” — in the context of neuropsychological evaluations. These Slick criteria combine objective and subjective factors and operate to guide and standardize a professional judgment on which reasonable minds may sometimes disagree. Exhibit 2 of the Settlement Agreement states that each neuropsychological examiner must complete a checklist of the criteria, provided in Exhibit 2, for every Retired NFL Football Player examined to determine whether his test data is a valid reflection of his optimal level of neurocognitive functioning. 

The first Slick item requires an analysis of whether there are suboptimal scores on the seven performance validity embedded indicators or tests that each examining neuropsychologist must administer to a Player during his neuropsychological examination(s). There has been some confusion in the Program over when a Player’s performance on ACS performance validity tests, in particular, are considered “suboptimal.”  In the Settlement Program, whether ACS validity test scores are considered suboptimal for purposes of the Slick assessment depends on whether they indicate a “high likelihood of invalid performance.” This occurs when the Player has at least two ACS scores that fall below the tenth percentile of the Clinical Sample Base Rates, or at least three ACS scores that fall below the fifteenth percentile. If the scores indicate a high likelihood of invalid performance but the clinician finds the performance validity scores are not suboptimal, that clinician’s judgment may require further evaluation by the Claims Administrator. 

Low validity scores that do not result in a “suboptimal” determination (including ACS scores), may affect the remaining eight Slick criteria because those remaining criteria require the clinician to reconcile inconsistencies between medical, collateral, and observational evidence. Where a particular Slick criterion is inconsistent or discrepant with the other criteria, or two or more criteria point in different directions, the clinician must thoroughly explain in writing why the testing was valid (discussing each Slick criterion is a strongly recommended best practice). After completely describing the Slick criteria’s application, the clinician should use the articulated checklist provided in Settlement Agreement Exhibit 2 to develop and then state a comprehensive judgment as to the Player’s performance validity. That opinion should demonstrate a thorough consideration of a claim’s inconsistencies and instances of potential invalidity, and use the clinician’s best articulated medical judgment to resolve any inconsistencies and suggestions of invalidity. Click here for additional information and to read the Special Master's full decision on this topic.

Reminder: Even though a clinician may determine that the Player showed adequate effort according to the foregoing factors, the Player’s failure on two or more effort tests may result in the test results being subjected to independent review or result in a need for supplemental testing.

Reminder: Three of the ACS subtests lack normative data for individuals over 69 years old. For such Players, the Settlement describes other primary effort tests as the appropriate measures, but the validity analysis for the first Slick item described above does not apply to those older claimants.

372. Do the Claims Administrator and/or the AAP defer to the clinician’s judgment when reviewing the Slick criteria?

The Claims Administrator will evaluate a submitted claim and determine whether it satisfies the Settlement requirements, including by assessing the thoroughness and accuracy of any explanations about performance validity, with input from the AAP and/or its Consultants where necessary. The AAP should defer to a clinician’s Slick-criteria-based validity analysis when it results from reasoning completely articulated in contemporaneous reports, unless the analysis is clearly erroneous. When clinicians fail to articulate their judgment through complete Slick analyses, the AAP and/or its Consultants (AAPCs) may thoroughly and independently assure themselves the criteria do not indicate invalid testing. 

When a Slick criterion is a factor in the denial of a claim, the AAP/AAPC are to note it as a factor in the denial explanation and include a thorough review of the Slick criterion, including the results of the performance validity testing that was administered as part of the test battery, with an explanation as to how or why the Slick criteria factored into the determination. The Claims Administrator should follow the AAP Reviewer’s judgment and defer to the results of this process. Click here for additional information and to read the Special Master's full decision on this topic.

Reminder: “Clearly erroneous” does not mean that the Claims Administrator or the AAP and/or its Consultants simply disagree with the diagnosing physician’s conclusions; rather, there must be something more; some examples include “a basic error in computation, a material failure to consider relevant evidence or apprehend its import, or a serious departure from the standard of care.” Click here to read the Special Master's full decision on this topic.

373. Is the diagnosing physician required to interview a knowledgeable informant as part of the CDR evaluation?

The Settlement Agreement does not explicitly require the diagnosing physician to interview a knowledgeable informant when conducting the Clinical Dementia Rating (“CDR”) interview. However, interviewing both the Retired NFL Football Player and a person knowledgeable with a Retired NFL Football Player’s situation, such as a spouse or caregiver, is good practice and is recommended by the CDR’s own guidelines. These interviews should be structured conversations. Information gleaned from these discussions should then be corroborated by documentary evidence or a third-party sworn affidavit from a person familiar with the Retired Football Player’s condition. The absence of evidence that results from the structured conversation with a knowledgeable informant may create a fundamental gap in the diagnostic records that may, in the presence of other facts, justify the denial of a claim. Click here to read the Special Master's full decision on this topic.

374. Is driving generally consistent with the required CDR scores for Level 2 Neurocognitive Impairment?

For a Qualifying Diagnosis of Level 2 Neurocognitive Impairment, the Settlement Agreement requires evidence of functional impairment that is generally consistent with CDR 2 scores in the areas of Community Affairs, Home and Hobbies, and Personal Care. For the Community Affairs category, this means that the Player has no pretense of independent function outside the home. The Settlement Agreement does not explicitly state that a Level 2 diagnosis is incompatible with continuing to drive. However, this fact and the extent of this retained functional ability is one of several factors that together help clinicians, including the AAP Members and Consultants, evaluate a claim. Generally, persons with Level 2 diagnoses require close supervision and would rarely work (even in supported fashion), drive, or attend medical appointments alone. Click here to read the Special Master's full decision on this topic.