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Special Master Appeal Decisions

360. 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.

361. 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.

362. How should a Qualified MAF Physician apply the Generally Consistent standard when making a Qualifying Diagnosis?

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