Neuropsychological Testing
September 23, 2021
The Claims Administrator denied the Level 2 Neurological Impairment claim because of the lack of evidence to support the diagnosing physician’s determination that neuropsychological testing was unnecessary. As FAQ 363 explains, if the diagnosing 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 rejecting the Player’s appeal, the Special Master deferred to the AAP’s conclusion that the Player’s cognitive screening test results did not indicate a severity of impairment that would lead a diagnosing physician to reasonably conclude that further testing was medically unnecessary.

Functional Impairment/Cognitive Decline
September 7, 2021
The Claims Administrator denied the Level 2 Neurocognitive Impairment claim because the Player did not submit a valid assessment of neuropsychological impairment (criterion (ii)) and did not show sufficient evidence of impaired daily functioning (criterion (iii)). The Special Master overturned that decision. An AAP Consultant and the AAPLC reviewed the claim on appeal and agreed that criterion (ii) for a Qualifying Diagnosis of Level 2 Neurological Impairment was fulfilled under the exception that a neuropsychological evaluation was not necessary because of the severity of the dementia. The Special Master deferred to the independent experts’ analysis that the diagnosing physician’s conclusion that neurological testing was medically unnecessary was reasonably determined. The Special Master rejected the AAPLC’s adverse recommendation regarding criterion (iii), instead finding that the diagnosing physician’s articulated consideration of psychiatric symptoms in assessing his functional impairment, and the conclusion that the Player nevertheless has dementia, was generally consistent with what the Settlement requires.

Slick Analysis and Functional Impairment
July 1, 2021
The Claims Administrator denied this claim on multiple grounds, including unaddressed Slick validity criteria and an unclear and underdeveloped record regarding the Player’s daily cognitive functioning. The Special Master found that the neuropsychologist’s assessment fell well short of a thorough consideration of the claim’s inconsistencies and instances of potential invalidity and did not reflect an articulated judgment about the Slick criteria. The clinician also failed, to the extent feasible, to attempt to isolate the functional impairment due to cognitive loss alone and assign a CDR rating based solely on cognitive loss, as required by the Settlement.

Audit
June 3, 2021
The Claims Administrator denied the Player’s claim and during the pending appeal, the claim was placed into audit. The Claims Administrator provisionally found a potentially material piece of evidence to be fabricated, which led it to doubt the trustworthiness of a key source of information about the Player’s functional impairment. That source was subsequently excluded from the record so the appeal could move forward. However, the Settlement Program demands that its fiduciaries work efficiently to pay valid Claims: one of the Special Masters’ primary duties is to make sure that the documentation and evidence that they rely upon as custodians of the Monetary Award Fund is reliable. As a result, the Special Master ordered the Claims Administrator to reopen the audit and make findings about whether any of the Player’s statements and documentary submissions misrepresented or omitted material facts, and if any misrepresentations are found, what role the Player’s law firm had in such misrepresentations.

Functional Impairment
May 28, 2021
Relying on the review and recommendations of an AAPC and AAP Member, the Claims Administrator denied the Player’s claim for Level 1.5 Neurocognitive Impairment. The Claims Administrator comprehensively explained why the Player’s diagnosis was not generally consistent with the Settlement criteria for Level 1.5 Neurological Impairment, specifically criteria (ii) evidence of moderate to severe cognitive decline . . . in two or more cognitive domains and criteria (iii) functional impairment. As FAQ 113 makes clear, the Diagnosing Physician’s report is a key document in evaluating whether the Player has adequately come forward with evidence of his functional impairment. That report is supposed to pull together the Player’s medical history, relevant documents and the physician’s articulated judgment. The Special Master upheld the denial, concluding that the MAF Physician’s report and supplemental email concerning the Player’s functional impairment do not establish a CDR of 1, and thus cannot support an overall award of Level 1.5 Neurocognitive Impairment.

Slick Criteria and CDR Scoring
April 27, 2021
The AAP should defer to a clinician’s Slick-criteria-based analysis when it results from reasoning completely articulated in contemporaneous reports unless the analysis is clearly erroneous.  A Slick analysis is not clearly erroneous because a member of the AAP or the Claims Administrator disagrees with the conclusion that the neuropsychologist made. The Special Master deferred to the first AAP Consultant who reviewed the Slick analysis and found that it was cogent and addressed each relevant factor.  The Special Master also concluded that the Player’s CDR, along with his neuropsychological test results, indicate that he is eligible for benefits associated with a qualifying diagnosis of Level 1.5 Neurocognitive Impairment instead of Level 2 Neurocognitive Impairment that the Diagnosing Physician found.

Functional Impairment and Validity Testing
March 19, 2021
The Claims Administrator denied the claim on two grounds: retained functional impairment that “indicate[s] a higher level of functioning than would be generally consistent with the Settlement criteria for Level 2 Neurocognitive Impairment,” and invalid neuropsychological testing. The Special Master found that the absence of an informant interview, coupled with a documented history of depression and the Diagnosing Physician’s inadequate analysis of the relationship between it and the Player’s functional impairment left a gap that justified the denial. Regarding test validity, the neuropsychologist’s discussion of the majority of the Slick criteria was conclusory and the Special Master deferred to the AAP’s independent medical judgment that the Slick criteria indicated that the Player’s testing provided an invalid measure of his abilities.

Functional Impairment
March 10, 2021
The Special Master examined whether the claim was wrongly denied in part because of evidence of the nature of the Player’s driving. For a Qualifying Diagnosis of Level 2 Neurocognitive Impairment, the Settlement Agreement requires evidence of functional impairment generally consistent with a CDR 2 rating in Community Affairs, meaning that a Class Member has “[n]o pretense of independent function outside [the] home.” Nothing in the Agreement categorically states that a Level 2 Diagnosis is incompatible with continuing to drive. But the fact and extent of this retained functional ability is one of several factors that together help clinicians, including the AAP Members and Consultants, evaluate a Claim.  It was the AAP Consultant’s independent view that the Player’s retained ability to transport himself, his loved ones, and those he mentors on a daily basis is inconsistent with a CDR Score of 2 in Community Affairs. The Player disagreed with the weight that the AAP Consultant gave to this factor. But that disagreement about weighting, argued at length, is not clear and convincing evidence that the AAP’s judgment (which the Claims Administrator adopted) was wrong.  The Special Master also stressed that Counsel must take reasonable steps to verify the accuracy of Claims made in their filings, especially when relying on Claimants whose memory may be fading.

Validity Testing and Functional Impairment
February 16, 2021
Eight Retired NFL Football Players’ claims relied on evaluations performed by a neuropsychologist who the Claims Administrator recommended be disqualified after Audit. The Special Masters decided that the AAP must perform an independent review of this neuropsychologist’s claims, because the records "may involve a misrepresentation, omission, or concealment of material fact."  These eight claims largely rely on sparse assessments that fail to include necessary detail for the Qualifying Diagnoses they assert.

Deviation from BAP Criteria
January 23, 2021
The AAP determined that the test battery was not generally consistent with the BAP criteria. Though it is true that some test variables overlap, the AAP’s analysis is more individuated and focuses on the goals of the tests and their relationship to establishing a reliable and meaningful exam. As the AAP concluded, “no reasonable substitutes” exist for important parts of the Settlement’s evaluative exams, the doctor's methods did not provide internal indicia of validity in the way that the Settlement requires, and the doctor paid no attention to qualitative evidence of validity through the Slick criteria.

Validity Testing
January 15, 2021
The Retired NFL Football Player did not offer evidence generally consistent with a Level 2 Diagnosis.  The Player’s test scores were not valid: the Player failed the quantitative measures; the doctor’s Slick analysis was both cursory and incorrect; and the AAPLC appropriately determined that a more rigorous analysis would have qualitatively and additionally determined the Player’s testing to be unreliable.

Functional Impairment
December 15, 2020
Functional impairment remains a barrier to the Player’s recovery. The Denial notes problems in the process by which the CDR was performed, raises concerns about the Player’s retained function, and states that the doctor failed to explore alternative bases for the Player’s disabilities. The Player’s Appeal argues that the "record is replete with evidence showing that he has a CDR of at least 1.0." The Special Master concluded that the Player has not met his burden on Appeal. He has not shown clear error in the Claims Administrator’s analysis of his involvement in community affairs, and consequently has failed to rebut an important gap in the file.

Reasons in Notice of Denial
December 4, 2020
The Settlement Agreement requires the Claims Administrator to provide “the reasons for the adverse determination” in the Notice. The Special Master concluded that the Notice of Denial is ambiguous as to whether this Player’s functional impairment was a reason for the adverse determination. On remand, the Claims Administrator shall evaluate whether the Player has provided documentation of functional impairment that is generally consistent with a Level 1.5 Diagnosis. It may then either issue an Award, provide the Player an opportunity to remedy any deficiencies it finds, or re-issue a revised Notice of Denial of the Player’s Claim.

Substance Use
December 2, 2020
The Player regularly consumed marijuana, including on the morning of his neuropsychological evaluation. Without further detail on the dosage and frequency of use of the substance, and without further detail on whether and how the neurologist considered the use of marijuana in her ultimate Diagnosis, the record is incomplete. The Claims Administrator may solicit from the doctor the dosing information and frequency of marijuana use. The doctor may also submit an analysis of why a Diagnosis of Level 1.5 Neurocognitive Impairment is appropriate despite the potential impacts marijuana may have had on neuro exam and on his daily cognitive functioning, as articulated in the CDR.

Deviation from BAP Criteria
October 28, 2020
The AAP determined that the test battery was not generally consistent with the BAP criteria for six similarly situated claimants and this decision is representative of the six issued. Though it is true that some test variables overlap, the AAP’s analysis is more individuated and focuses on the goals of the tests and their relationship to establishing a reliable and meaningful exam. As the AAP concluded, “no reasonable substitutes” exist for important parts of the Settlement’s evaluative exams, the doctor's methods did not provide internal indicia of validity in the way that the Settlement requires, and the doctor paid no attention to qualitative evidence of validity through the Slick criteria.

Neuropsychological Testing: Slick Criteria and Validity Testing
October 21, 2020
The Special Master explained that where a particular Slick criterion is inconsistent or discrepant, or criteria point in different directions, the examiner must thoroughly explain in writing why the testing was valid and directed that the Claims Administrator try to obtain an analysis of the test validity that must: (1) describe why the MAF Physician believes that each Slick criteria is not a concern, focusing on the discrepancies identified by the AAP Reviewers; and (2) come to a fresh holistic judgment noting when possible why particular discrepancies should not compel a finding that the testing was invalid. 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. Conversely, when clinicians fail to articulate their judgment through complete Slick analyses, the AAP may thoroughly and independently assure themselves the criteria do not indicate invalid testing. The Claims Administrator evaluates the submitted claim and determines whether it satisfies the Settlement requirements, guided by the AAP, whose job it is to make sure that claim adjudication follows the medicine.

Neuropsychological Testing and Validity
September 29, 2020
The Player submitted three sets of neuropsychological tests to support his claim based on Level 1.5 Neurocognitive Impairment.  The first was performed by a doctor whose testing has been disallowed by the Settlement Program and the second was performed more than a year before the MAF exam, so neither of those tests could be considered.  Both the neuropsychologist and the AAP determined that the third test was invalid because of suboptimal scores on performance validity tests and issues relating to several Slick criteria. Rule 10(d) of the Rules Governing MAF Physicians clarifies the proper practice for the diagnosing physician in the event that he/she disagrees with the conclusions of the examining neuropsychologist. It does not state that the Claims Administrator must simply defer to the opinion of the MAF Physician in the face of such a disagreement. Invalid neuropsychological test results cannot support a Level 1.5 Qualifying Diagnosis.

Evidence to Support a Qualifying Diagnosis
September 5, 2020
Contemporaneous proof of each listed Claim must be evaluated on its own terms, paying attention to the actual evidence before the diagnosing physician and the Claims Administrator.  Diagnosing Physicians for pre-Effective Claims do not have plenary authority to determine whether the Claimant's evidence of functional impairment was sufficient.

Demographic Norm Adjustments
August 20, 2020
Clinicians evaluating self-identified African American players may identify those players by that race and apply the full demographic adjustments under the ACS software and apply African American Heaton norm adjustments. But failure to do so is not itself a reason to deny a claim. The most that we can say is that in general both such adjustments are presently recommended. Clinicians’ discretion to adjust regarding racial norming has wide but appreciable limits. First, since full demographic adjustments are presently generally recommended, when a clinician does not use them, it is reasonable to require that the clinician explain why. The Claims Administrator may fairly worry that the clinician decided to adjust, or not, as a way of achieving a financial result for a particular player, instead of as an exercise of medical judgment. Thus, the Claims Administrator may require clinicians to show that their decision to avoid the recommendation was consistent with their ordinary practice.

Validity Testing and Cause of Functional Impairment
August 19, 2020
The Settlement explicitly addresses performance validity in two ways. First, clinicians must include performance validity tests—both embedded and standalone—in the neuropsychological test battery. These tests aim to provide a quantitative basis for detecting suboptimal effort or deliberate underperformance. Second, clinicians must evaluate performance validity by completing the Slick et al . checklist of validity criteria. As these are independent requirements, passing at least two of the performance validity tests included in the neuropsychological test battery does not end the validity analysis. In other words, as is evident from the Slick criteria, there are instances in which a patient will obtain “passing” scores across all performance validity tests, but the clinician might nonetheless determine that his neuropsychological test results are invalid.

Neuropsychologist Qualifications
August 12, 2020
The neuropsychologist was not certified by the American Board of Professional Psychology (ABPP) or the American Board of Clinical Neuropsychology (ABCN), a member board of the American Board of Professional Psychology, in the specialty of Clinical Neuropsychology and therefore the Diagnosis did not satisfy the Settlement’s requirements.

Neuropsychological Testing Not Generally Consistent
August 11, 2020
The Qualifying Diagnosis of Level 1.5 Neurocognitive Impairment on 6/3/16 was not made in a manner generally consistent with the Settlement criteria, because the neuropsychological test results reflect evidence of moderate cognitive decline in only one cognitive domain instead of two or more domains.

Stroke Definition
July 15, 2020
The Settlement Agreement directs that the word Stroke is a Term of Art, defined by the ICD 9/10. This Player suffered an emergent manifestation of cerebrovascular disease, i.e., intracranial hemorrhage, I60.7 in the ICD-10, and between 430-432 in the ICD-9.

CTE Diagnosis
July 15, 2020
The claim was denied based upon a lack of proof that the diagnosis was timely. There is no evidence that the diagnosis of Death with CTE was obtained before the appropriate deadline. Second, the claim was denied for failure of the diagnosing physician to personally examine the Player’s brain tissue. However, the evidence suggests that doctor did examine the brain tissue as is necessary to diagnose Death with CTE. The Claims Administrator correctly concluded that the Representative Claimant failed to show that the diagnosis was obtained before the appropriate deadline. The Special Master affirms the denial solely on the first basis.

CTE Diagnosis
July 15, 2020
The doctor did not examine brain tissue as is necessary to diagnose Death with CTE, and there is no proof that the diagnosis was timely. The Representative Claimant meets neither of the two Settlement requirements for a diagnosis of Death with CTE.

Pre-Diagnosis Evidence
July 2, 2020
External evidence—and, in particular, proof out of temporal joint with the diagnosis—must be evaluated with care. All three criteria focus on the claimant’s degree of impairment and function as of the time of the diagnosis, not his past behavior or his future course. Thus, the Special Master’s focus must be on the strength of the clinician’s contemporaneously created record and the Claims Administrator’s process for reviewing that record.

Validity Testing for Level 1.5 Neurocognitive Impairment Claim
June 24, 2020
Highlights that to ensure equity across Settlement Class Members, claimants must follow a standardized process that requires valid neuropsychological test results to measure cognitive performance, and the AAP and AAP Consultants who are empowered to advise on neuropsychological testing may find a Player's test results invalid

Qualified MAF Physician's Certification that Testing is Medically Unnecessary
June 8, 2020
Further elaborates on the Claims Administrator’s obligation to determine if the physician’s certification was “reasonably determined,” meaning that the physician’s choices are cognizable as an application of the Settlement’s narrow (“unless”) exception to the testing requirement (i.e., that the impairment was “so severe” that testing is “medically unnecessary”)

Post-Diagnosis Evidence
June 8, 2020
Explains that the appropriate focus on appeal is on the strength of the clinician’s contemporaneously created record and the Claims Administrator’s process for reviewing that record and that the clinical judgments resulting from that consideration ought not be undermined by later-arriving evidence that, while suggestive, fails to constitute a pattern inconsistent with the assigned CDR Rating

Generally Consistent Standard Between Level 1.5 and Level 2.0
June 2, 2020
Explains that the notion of “general consistency” does not provide the diagnosing physician latitude to loosely construe the Injury Definitions that have been set forth in the Settlement Agreement, at least without further explanation

Qualified MAF Physician's Certification that Testing is Medically Unnecessary
May 27, 2020
Discusses the Claims Administrator’s obligation to determine if the physician’s certification was “reasonably determined,” meaning that the physician’s choices are cognizable as an application of the Settlement’s narrow (“unless”) exception to the testing requirement (i.e., that the impairment was “so severe” that testing is “medically unnecessary”)

Clinical Judgment on Generally Consistent Standard
May 27, 2020
Directs that the Claims Administrator may defer to the judgment of the treating physician, and reliance should be the customary response to articulated medical judgments

Test of Premorbid Functioning (TOPF)
May 1, 2020
Discusses the use of the TOPF models to determine pre-morbid IQ

Generally Consistent (Level 2)
October 24, 2018
Discusses application of the “generally consistent” standard to a Level 2 Neurocognitive Impairment diagnosis

Appeal Decisions on Application of Generally Consistent to Facts
October 18, 2018
Clarifies the burden of proof for an appeal on “generally consistent” grounds and classifies Special Master decisions on the application of “generally consistent” to facts as factual determinations not subject to further appeal

AAP/AAPC Consultation by Special Masters
September 28, 2018
Explains that the Special Master is not required to consult with the AAP or AAPC when deciding appeals involving medical questions

Generally Consistent (Level 1.5)
September 24, 2018
Discusses timeliness of appeals and application of the “generally consistent” standard to a Level 1.5 Neurocognitive Impairment diagnosis

53-Man Active Roster
December 4, 2017
Holds that Retired NFL Football Players who were on a Member Club’s Active List (sometimes called the “53-man roster”) on the calendar day of a regular season or postseason game receive credit for that game towards an Eligible Season, even when the Player was placed on the inactive or injured reserve list before the start of the game