Denied an award under the NFL Concussion Settlement: Now What?

By Jeff Nixon
Sep. 13, 2018

The awards for former NFL players have gone up almost $40 million since they surpassed $500 million mark on July 30, 2018. The total NFL Concussion Settlement awards now stand at $538,401,164.

The newest NFL Concussion Claim Report shows that almost 2,000 claims have been filed. The majority of the claims are for the lower levels of cognitive impairment. 736 were for Level 1.5. and 524 were for level 2.

Of these 1,260 claims for Level 1.5 and Level 2 cognitive impairment, 217 former players have received notices of monetary awards totaling $214,606,913 and 309 players have been denied an award.

Of the 309 that were denied, 222 players were denied because the Appeals Advisory Panel determined that the diagnosis did not rise to Level 1.5 or Level 2 cognitive impairment. Another 87 claims were denied because of 3 reasons:

· The diagnosis was made by an inappropriate physician

· The physician was not qualified to sign the Diagnosis Physician Certification Form

· A complete Claim Package was never provided by the class member

Here is the breakdown showing the number of denials and the reasons for those denials:

Level 2

· 9 Appeals Advisory Panel Denial - Diagnosis Made by Inappropriate Physician

· 76 Appeals Advisory Panel Denial - Not Level 2

· 17 Physician Not Qualified to Sign Diagnosis Physician Certification Form

· 9 Complete Claim Package Never Provided by Class Member

Level 1.5

· 17 Appeals Advisory Panel Denial - Diagnosis Made by Inappropriate Physician

· 146 Appeals Advisory Panel Denial - Not Level 2

· 12 Physician Not Qualified to Sign Diagnosis Physician Certification Form

· 43 Complete Claim Package Never Provided by Class Member

So what does all this mean to players who have been denied an award?

Under the Settlement, you can appeal a decision made by the Claims Administrator. The Settlement website has key rules and regulations regarding the appeals process. You can see those rules at this link: Settlement Program Rules

For all the former players that have been denied, there is a silver lining to the cloud. You can resubmit a new claim if, or when, your cognitive impairment rises to the level of a “qualifying” diagnosis.

It is important to know that 1,542 of the 2,000 claims were “Pre-Effective Date” claims. These are claims that were based on diagnosis’ rendered by a players own physician. Per the Settlement, these players were not required to utilize the BAP (Baseline Assessment Program) because they used diagnoses made by physicians before January 7, 2017.

As the Claim Report shows, a number of claims are being denied because these pre-effective date claims did not use appropriate physicians. For players that have been denied a claim for that reason, they can now go back and utilize the BAP doctors to get a diagnosis.

Unfortunately, there have been some accusations that the BAP and MAF doctors are being manipulated by the NFL and the Claims Administrator. Nothing could be further from the truth. The Settlement has very strict rules and regulations that govern the procedures and protocols of these doctors and there can be severe penalties for any party that violates the rules. You can see some of the safeguards that have been put in place by reading the Settlement Rules Governing Qualified MAF Doctors and BAP doctors.

The BAP doctors enter into a contract with the BAP Administrator that states: The Provider Contract’s fraud policies will contain the following warning against fraudulent conduct: “As a Qualified BAP Provider you have agreed to provide your services and make your diagnosis in good faith in accordance with best medical practices. Your diagnoses and billings will be audited on a periodic and random basis subject to the discretion of the BAP Administrator and Special Master (or the Court after expiration of the term of the Special Master and any extension(s) thereof). Any finding of fraudulent diagnoses or billings by you will be subject to, without limitation, referral to appropriate regulatory and disciplinary boards and agencies and/or federal authorities, the immediate termination of this contract, and your disqualification from serving as a diagnosing physician in any aspect of the Class Action Settlement”

Some doctors that have failed to adhere to the rules have already been suspended and/or terminated from their contracts.

The Judge recently ruled that players currently in the claims process can substitute a Pre-Effective date physician diagnosis with a BAP doctor’s diagnosis. If your claim has already been denied, it is too late to do that, but there is nothing preventing a player that was denied an award from now using the BAP to get a diagnosis from physicians that have been qualified by the Claims Administrator.

Remember, the exact deadline to get a free Baseline Assessment depends on your age:

(a) If you were born on or before January 7, 1974, you must have your BAP exam on or before June 6, 2019.

(b) If you were born after January 7, 1974, you must have your BAP exam on or before June 7, 2027, or before you turn 45, whichever is sooner.

Will the BAP doctors give you a “qualifying” diagnosis?

You won’t know until you enter the free Baseline Assessment Program and see a Neurologist and Neuropsychologist. To date, 325 players have submitted claims based on BAP doctor diagnoses.

Here are some other important facts regarding the claims that have been submitted:

· There were an additional 88 claims denied because there was an “Unconfirmed Qualifying Diagnosis - Complete Claim Package Not Provided.” This was for ALL diagnoses’ including CTE w/ Death, ALS Parkinson’s and Alzheimer’s Disease, so it is impossible to determine how many Level 1.5 and Level 2 claims are in this total, but I would assume that a large majority of these denials fall into those two categories

· 76 Level 1.5 claims and Level 2 claims have been withdrawn by players and lawyers. This also includes representative and derivative claimants

· 261 claims are currently in Audit Investigation

· 434 claims have been removed from audit and put back into the claims review process

· 225 of the Level 1.5 claims and Level 2 claims that were audited by the Claims Administrator have received an Adverse Audit Report and are now with the Special Masters for review

· 143 Level 1.5 and Level 2 claims have been denied after audit

· 93 Level 1.5 and Level 2 that are currently being audited, have failed to provide information requested by the Claims Administrator and are at risk of being denied

· The Program has audited 1,117, or 56%, of all claims

· The Program has issued notices to 1,355 incomplete claim packages, which is 73% of all Level 1.5 and Level 2 claims and 58% of all other claims

· The NFL has appealed 94 award decisions but, to date, 43 decisions have been upheld by the Claims Administrator and only 2 have been overturned. The other appeals are still in process.

For players and family members that go through the process of getting assessed, filing a claim, being audited, responding to document requests, having a claim denied, filing an appeal to a decision, or fighting an NFL appeal can be downright exhausting. For some it has been a Hellscape. There is no doubt that some folks have gone through the ringer in trying to get an award for themselves or for a family member.

I think we all knew that the NFL was not going to roll over and give away the keys to their vault. Never have.....never will.

All I can say is, don't stop fighting until the final whistle blows.