Norms are databases that aggregate neuropsychological test scores from people who represent the general population and who do not have neurocognitive problems. Clinicians compare neuropsychological test scores obtained from an examinee against the scores in those databases in order to help identify whether the examinee’s performances are similar to, or significantly different from, what is expected for an unimpaired person of similar background characteristics. Norms were not created for the Settlement Program. They were in use in standard clinical practice long before the Class Action Settlement Agreement was created. Clinicians consider various demographic aspects of the examinee when using Norms to determine the examinee’s level of cognitive impairment, including their age, education level, sex, and sometimes race.
Black Race Norms, as defined in the Norming Agreement, means the use of Norms in a manner that treats the examinee’s race as non-White when evaluating neuropsychological testing.
Demographic Estimates means the use of an examinee’s demographics—including age, sex, education level, and sometimes race—to estimate the examinee’s pre-injury level of functioning. Demographic Estimates were not created for the Settlement Program. They were in use in standard clinical practice long before the Class Action Settlement Agreement was created.
Black Race Demographic Estimates, as defined in the Norming Agreement, means the use of Demographic Estimates in estimating an individual’s premorbid intellectual functioning in a manner that treats the examinee’s race as non-White.
The Class Action Settlement Agreement allowed, but did not require, clinicians to use Black Race Norms and Black Demographic Estimates during the neuropsychological evaluation of Retired NFL Players for purposes of diagnoses and awards based on dementia, consistent with clinical practice at the time the Class Action Settlement Agreement was entered into. Last year, two Retired NFL Football Players brought legal actions challenging this practice. After mediation required by the Court, the NFL Parties, Class Counsel, and the attorneys for the two Players have collaboratively reached an agreement to eliminate any consideration of race in the Settlement Program. This agreement is known as the “Norming Agreement.”
On December 30, 2021, Counsel for the NFL Parties and Class Counsel filed a Motion with the Court overseeing the Settlement Program to approve certain modifications to the Class Action Settlement Agreement necessary to implement the components of the Norming Agreement that impact the Settlement Class Members. The Court entered an Order on March 4, 2022, granting that Motion and approving the modifications.
The Norming Agreement describes a new assessment method, the “New Method,” which was developed by leading expert neuropsychologists (the “Expert Panel”) to completely remove race as a variable for consideration when scoring or classifying test results from the neuropsychological evaluations of Retired NFL Football Players participating in the Settlement Program. This new race-neutral assessment method will be used on an interim basis to remove the consideration of race from the Settlement Program immediately. At the same time, the Expert Panel will work to create race-neutral, long-term demographic corrections specifically applicable to the population of Retired NFL Football Players which the Parties expect will be instituted at some point in the future, in a process which would involve your feedback.
For now, Exhibit A-2 of the Class Action Settlement Agreement has been replaced to reflect the New Method and the approval of additional benefits for certain Retired NFL Football Players whose prior testing may have been impacted by the consideration of race.
Three modifications were made to the Settlement Program’s neuropsychological testing protocol, as reflected in the new Exhibit A-2 to the Class Action Settlement Agreement:
(1) Discontinuing the use of the Test of Premorbid Functioning Simple and Complex equations to estimate the Player’s longstanding (‘premorbid’ or ‘pre-injury’) functioning in favor of using the TOPF reading standard score to estimate the Player’s longstanding Reading Level;
(2) Prohibiting clinicians from using Norms in a manner that takes into account the examinee’s race, and replacing it with a system where Norms are used in a manner that only takes into account the examinee’s age and education;
(3) Raising the cutoff scores for cognitive impairment, such that higher demographically adjusted scores will qualify for Qualifying Diagnoses of Level 1, Level 1.5, and Level 2 Neurocognitive Impairment.
Additional benefits will be provided to certain Settlement Class Members whose post-Effective Date neuropsychological testing was potentially impacted by the consideration of race. The Claims Administrator will notify you as to which, if any, of the additional benefits listed below apply to you.
These benefits include:
(1) Automatic Retrospective Rescoring: The automatic rescoring of certain Retired NFL Football Players’ testing using the New Method.
(2) Expanded BAP Examinations: The opportunity for some Retired NFL Football Players to receive an additional free BAP evaluation using the New Method.
(3) New Settlement Claim Submissions: Some Retired NFL Football Players may choose to have prior evaluations rescored at their own expense using the New Method and submit new Settlement Claims based on those results.
Subject to certain limited exclusions (See FAQ 378), any Retired NFL Football Player is eligible for Automatic Retrospective Rescoring if he:
(1) had a BAP diagnoses of no impairment or Level 1 Neurocognitive Impairment, where Black Race Norms or Black Race Demographic Estimates were applied to the Retired NFL Football Player’s neuropsychological testing; or
(2) had Black Race Norms or Black Race Demographic Estimates applied to his neuropsychological testing and
(a) had a BAP or Post-Effective Date MAF approved Level 1.5 Neurocognitive Impairment Settlement Claim; or
(b) had a denied Level 1.5 or Level 2 Neurocognitive Impairment Settlement Claim; or
(3) had a Settlement Claim denied or reduced due to a failure to use Black Race Norms or Black Race Demographic Estimates, where such rescoring could potentially result in a Qualifying Diagnosis or a higher Qualifying Diagnosis solely due to a change in the Retired NFL Football Player’s neuropsychological T scores. This means that the Retired NFL Football Player must otherwise meet the Class Action Settlement Agreement’s functional impairment and validity requirements for a more severe Qualifying Diagnosis based on his prior evaluations.
Yes, a narrow set of Settlement Claims are excluded from Automatic Retrospective Rescoring. These are categories of claims where the claim outcome would not change even if the Claimant’s neuropsychological test scores were lower. They are:
(1) Settlement Claims denied for incompleteness;
(2) Settlement Claims denied as a result of audit;
(3) Withdrawn Settlement Claims; and
(4) Settlement Claims based on diagnoses rendered by providers who have been disqualified from the Settlement Program.
The Claims Administrator and BAP Administrator, with guidance from the AAP/AAPLC/AAPC as necessary and oversight of the Special Masters, determined who qualified for Automatic Retrospective Rescoring, including whether any exclusions apply. This determination is final and unappealable.
Automatic Retrospective Rescoring was conducted by neutral, Court-approved AAPCs.
Yes. The Claims Administrator notified you or your lawyer as to whether you qualify for Automatic Retrospective Rescoring using the New Method. If you qualified, there is nothing you needed to do to have your prior testing rescored. Your prior tests were automatically rescored using the New Method and the notice you received from the Claims Administrator included the results of the rescoring.
If the rescored test results met the requirements for a Qualifying Diagnosis or a higher Qualifying Diagnosis, one of two procedures were followed. If you previously submitted a Settlement Claim based on that testing, you automatically received a Monetary Award Claim Determination. If you had not previously submitted a Settlement Claim, the Claims Administrator notified you that you must file a Claim, which will receive a Monetary Award Claim Determination once submitted and determined to be complete, or you will be eligible to receive BAP Supplemental benefits.
Certain Retired NFL Football Players who had Black Race Norms or Black Race Demographic Estimates applied to their post-Effective Date test scores or estimated premorbid intellectual functioning determination, but whose testing was not automatically rescored under the above process, are eligible for a free Expanded BAP Examination (including an evaluation by a Qualified BAP Provider neurologist and a Qualified BAP Provider neuropsychologist), regardless of whether they had a prior BAP exam or were initially eligible for a BAP exam.
Additionally, instead of receiving a free BAP examination, the Retired NFL Football Player may choose to have his tests rescored using the interim New Method, either by the original neuropsychologist or by an AAPC, at the Retired NFL Football Player’s own expense (See FAQ 388 for additional information).
Subject to certain limited exclusions (See FAQ 384), any Retired NFL Football Player whose neuropsychological test scores or estimated premorbid intellectual functioning determination included the use of Black Race Norms or Black Race Demographic Estimates is eligible for one free BAP examination (including an evaluation by a Qualified BAP Provider neurologist and a Qualified BAP Provider neuropsychologist) if:
(1) his Settlement Claim was denied in part because of the insufficiency of his T scores; or
(2) he did not file a Settlement Claim because the Qualified BAP Providers or Qualified MAF Physician who examined him did not diagnose him with a Qualifying Diagnosis in part because of the insufficiency of his T scores.
If a Retired NFL Football Player meets either of the above requirements, he is eligible for an Expanded BAP Examination regardless of whether he has already had a BAP examination prior to the implementation of the Norming Agreement or is otherwise BAP-eligible.
If the Retired NFL Football Player is deceased, you should notify the Claims Administrator. A Special AAP Panel will rescore the Retired NFL Football Player's test results and determine whether the rescored tests meet the criteria for a new or more severe Qualifying Diagnosis.
Retired NFL Football Players are not eligible for an Expanded BAP Examination if:
(1) they were eligible for Automatic Retrospective Rescoring;
(2) they have their testing scored at their own expense and submit a new Settlement Claim based on the rescored results;
(3) their Settlement Claims were denied as the result of an audit; or
(4) their Settlement Claims were withdrawn, and would have been denied as the result of an audit had they not been withdrawn.
A Retired NFL Football Player’s eligibility for an expanded BAP examination will be determined by the BAP Administrator, with guidance from the Claims Administrator and Special Masters as necessary, and such determination is final and unappealable.
Yes. Within 24 months of the Court’s Order granting the Motion, or by March 4, 2024, Retired NFL Football Players or, if represented, their counsel must contact the BAP Administrator to request an appointment for an Expanded BAP Examination.
Yes. After the Qualified BAP Providers have made their final determination based on the results of the new BAP examinations and submitted the requisite paperwork to the BAP Administrator, the BAP Administrator will send the appropriate notice to Retired NFL Football Players advising them of the determination.
Some Retired NFL Football Players may choose to have prior evaluations rescored at their own expense using the New Method and submit new Settlement Claims based on those results. Specifically, Retired NFL Football Players who received a valid Post-Effective Date neuropsychological evaluation from a neuropsychologist approved to support diagnoses from Qualified MAF Physicians through the MAF program (rather than a Qualified BAP Provider through the BAP) and either (a) did not submit a Settlement Claim because Black Race Norms or Black Race Demographic Estimates were applied to their neuropsychological testing, or (b) submitted a Settlement Claim that was denied in part because their neuropsychological testing did not qualify them for a Monetary Award as a result of the use of Black Race Norms or Black Race Demographic Estimates may, at their option and expense and instead of receiving an expanded BAP examination, have the neuropsychologist who administered the testing or an AAPC rescore the prior valid post-Effective Date MAF program neuropsychological testing using the New Method and submit a new Settlement Claim relying on the rescored testing.
To be eligible for this benefit, the application of Black Race Norms or Black Race Demographic Estimates must be evident on the face of the original neuropsychological testing documents or supported by a statement from the examining or rescoring neuropsychologist demonstrating that Black Race Norms or Black Race Demographic Estimates were used.
Yes. Any new Settlement Claims relying on rescored test results must be submitted within 24 months of the Court’s Order granting the Motion, or by March 4, 2024.
Retired NFL Football Players are not eligible to have their testing rescored and submit new Settlement Claims relying on the rescored results if:
(1) their test results were found to be invalid in any final decision;
(2) they were eligible for Automatic Retrospective Rescoring;
(3) they avail themselves of an Expanded BAP Examination;
(4) their Settlement Claims were denied as the result of an audit;
(5) their Settlement Claims were withdrawn, and would have been denied as the result of an audit had they not been withdrawn; or
(6) their testing was administered by a clinician who has been disqualified from the Settlement Program.
You must submit a complete Claim Package with your new Settlement Claim, including the following (see FAQ 103):
(1) A completed Claim Form signed by you;
(2) A completed Claim Package HIPAA Form signed by you;
(3) A Diagnosing Physician Certification Form (“DPC”) filled out and signed by the Qualified MAF Physician who made the Qualifying Diagnosis based on the rescored test results;
(4) Medical records reflecting your Qualifying Diagnosis;
(5) In the event you want to prove more Eligible Seasons than what we already found for you when you registered for the Settlement Program, submit records showing employment or participation in NFL Football; and
(6) Evidence that Black Race Norms or Black Race Demographic Estimates were applied to your original neuropsychological testing. If the application of Black Race Norms or Black Race Demographic Estimates is not evident on the face of the original neuropsychological testing documents, you must obtain a statement from the examining or rescoring neuropsychologist demonstrating that Black Race Norms or Black Race Demographic Estimates were used (see FAQ 388).
You can choose to get a signed DPC from the Qualified MAF Physician who initially examined you, or you can go to a different Qualified MAF Physician, subject to the Settlement Program’s existing rules for which Qualified MAF Physicians you may choose (see FAQ 88).
If you decide to go to a different Qualified MAF Physician, that Qualified MAF Physician must personally examine you and determine that you meet all requirements for a Qualifying Diagnosis before they can sign a DPC relying on the rescored test results.
If you go back to the same Qualified MAF Physician, and they determine, based on their sound medical judgment, that they have all the information necessary to make a Qualifying Diagnosis without examining you again, as reflected in their records contemporaneous to the previous evaluation, they can sign a DPC relying on the rescored test results without a new examination. However, if the Qualified MAF Physician determines a new examination is necessary, you will need to undergo a new examination by that Qualified MAF Physician before they can sign a DPC for a Qualifying Diagnosis relying on the rescored test results.
Regardless of whether you go back to the Qualified MAF Physician who initially examined you or whether you decide to go to a different Qualified MAF Physician, if the diagnosing Qualified MAF Physician determines, in the exercise of his or her sound medical judgment, that based upon your rescored test results and other contemporaneous records, he or she has enough information to reasonably conclude that all of the criteria for a Qualifying Diagnosis were met as of the date of the initial neuropsychological examination, that date may be used as the date of the Qualifying Diagnosis. However, if any of the Class Action Settlement Agreement’s requirements for the claimed Qualifying Diagnosis were not met until the date of a later examination, including a contemporaneous CDR determination, the date of the later examination will be used as the date of the Qualifying Diagnosis. Any claim where the Qualifying Diagnosis date is before the diagnosing Qualified MAF Physician personally examined the Player will be strictly scrutinized in the claims review process (see FAQ 100).