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Motion Asks Court to Rein In NFL Concussion Settlement Audits

Roger Goodell NFL endless auditsFebruary 26, 2018
Sheilla Dingus

Late Sunday night, a motion dropped on the NFL Concussion Settlement docket outlining repeated audits of the same claims and requesting court intervention.

The motion was filed by Patrick J. Tighe of X1 Law on behalf of over 30 players identified only by their claim numbers.

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Tighe outlines the adversarial process the referenced players have faced in having their claims evaluated by Claims Administrator BrownGreer.

  •  issuing Notices of Deficiency;  issuing 1st Notices of Preliminary Review;
  • issuing Notices of Audit and conducting an Audit;
  • issuing a Notice of Concluded Audit after determining there was no indicia of fraud;
  • allowing the Pre-effective date claims to proceed to the Appeals Advisory Panel;
  • issuing 2nd Notices of Preliminary Review;
  • issuing Notices of Denial of certain Claims;
  • allowing Claimants to appeal the Denials;
  • allowing the NFL to reply to the appeals; and  issuing Notices of 2nd Audits and conducting another audit

He states that subjecting claims to a second audit is a deviation from the written language of the settlement agreement as well as a violation of due process rights for his clients as well as other players who’ve been subjected to this process.

Tighe writes that on June 27 and 28, 2017, he submitted numerous claims packages to the claims administrator.

The claims administrator promptly issued notices of deficiency for each claim.  On August 24, the claims administrator revised these to notices of preliminary review.  Oddly, he says, the existence of these notices have been removed from the claims portal, leaving an inaccurate records of the claims processing, submitting exhibits of print-outs taken from the portal to show the items that are no longer visible.

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He states, that audits were completed on March 23, 2018, six months after the claims were placed in audit, and received notices from the claims administrator indicating that “there was no reasonable basis to support a finding of misrepresentation, concealment, or omission of material fact, and provides these notices as an exhibit.

Tighe writes that a week after these claims were removed from audit, they were placed in preliminary review again with a request for the same information that had been requested and provided in the first notices of preliminary review, which he calls a “repackaged deficiency notice.”  Shortly thereafter, the claims were denied.

Afterward, he says, several of the players paid the fee of $1,000 and filed an appeal of the denials.  The NFL responded to these appeals, but then, just days before a decision from the Special Master was expected, the claims were placed in audit for a second time.

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He then writes, “Claimants are only allowed 90 days within which to respond to an Audit (or have their claims denied in their entirety and with finality) and provided responses. Much of what was requested in the First Audits was requested again in the Second Audits.” He provides Exhibit 1 and Exhibit 11 to verify his statement.

Tighe, on behalf of his clients has asked the court to intervene in what he calls a rewrite of the settlement agreement.

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He points out Section 10.3(d), which identifies three circumstances under which the Claims Administrator may audit Claims Packages and analyze the data to determine if there was a misrepresentation, omission, or concealment.

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He then points out that nowhere in the settlement agreement are multiple audits on the same claim provided for.  Not specifically referenced in Tighe’s motion is a provision for the claims administrator to randomly audit 10% of approved claims, which appears to have happened in Wendy Fleishman’s appeal, but that isn’t a factor since these claims have not yet reached approval.  My opinion on the audit is this: If an already audited claim should wind up in the random 10%, then it should quickly move through the system as it has already been audited.  The double audits seem to be in direct conflict with the double jeopardy clause as encoded in the Fifth Amendment, stating in part, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

While it’s true this has been unevenly applied in civil cases, it’s difficult to justify, giving a defendant as many bites at the apple as necessary to find something to defeat a plaintiff, which is what seems to be happening here, not to mention that the settlement itself does not provide for multiple audits of the same claim.

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If the claims administrator undertakes an audit, he should review all factors he finds appropriate to review prior to rendering a decision and releasing the claim.  I’ve had numerous players ask me about the multiple audits of claims, and this puts unnecessary stress on impaired players.  Even if they are not found to have a compensable condition, this does not mean that they aren’t suffering from conditions that aren’t compensable, such as depression, anxiety, impulsivity, or suicidality.  I fear this practice will eventually cost someone his life.  I’ve had several wives state that their husbands have become suicidal while waiting to hear results on their claim determination, and for some players that I’ve spoken with directly, the confusion, frustration, and anxiety they feel is readily apparent.

Death with CTE compensation outside a small window ending with preliminary settlement approval date was eliminated in order to prevent suicides.  It hasn’t worked.  Since April 22, 2015, there have been 11 suicides, 6 with confirmed CTE, 3 yet to be reported and 2 in which no autopsy took place.  Those administering the settlement should recognize this and take precautions as to not accidentally trigger someone who may be vulnerable.

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Tighe includes as an exhibit, an email from James Hoban at BrownGreer, in response to his inquiry as to why a claim was being audited a second time.

BrownGreer email

The obvious question would be, if this wasn’t examined during the first audit, what was?

The February 25, summary report posted on the settlement website states: “The Program has audited 1,186, or 45%, of all claims, including 587 claims removed from audit and put back into the claims review process, 191 claims currently in Audit Investigation, 218 claims on Adverse Audit Reports with the Parties or Special Masters for Review or awaiting a response from those audited and 190 claims denied after audit.”

What isn’t stated is how many claims have been subjected to multiple audits.  A glance at the numbers will reveal that Level 1.5 and 2 Neurocognitive Impairment, or dementia claims are under severe scrutiny.

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Compared with zero CTE or ALS claims and only 5 for Alzheimer’s or Parkinson’s, 72, dementia claims are currently under audit, meaning 91% of claims under audit are the dementia claims the NFL seeks to discredit and deny.  There is no way of knowing how many of the claims represented here are facing a second or third audit.

BrownGreer’s February 15 status report adds some additional audit information.

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As of the report, 2,644 claims for monetary awards had been presented, 558 of which are derivative claims, which, on information and belief, are generally not targeted for audit, leaving 2,086 player or representative claimant monetary award claims filed.  In looking at submitted claims from the same report window as the status report, we can see that, 166 claims for Death with CTE and ALS have been submitted, presumably without audit, reducing the number of audit-subject claims to 1,920.

Of these, 1,606 are claims for dementia, representing 61% of all claims filed and 83% of claims targeted for audit.  91% of claims currently under audit are dementia claims.

No matter how you slice it, it seems that players filing dementia claims, along with the lawyers who represent them and the doctors who diagnose them are considered to be fraudulent unless proven otherwise, with multiple chances to discredit on any theory the NFL might propose.

Rather than a vast conspiracy to defraud the NFL waged by over 1,600 former players, and dozens of unrelated doctors and lawyers, I find it more plausible that the NFL simply does not want to pay these claims and has gone to great lengths to discredit whomever they are able to piece a circumstantial case against.

Consider this posting from a recent medical conference:

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Dr. Randolph Evans, a clinical professor of neurology at Baylor College of Medicine in Houston, who was disqualified from the program after examining 395 players, has weighed in about the unreasonable standards imposed on physicians through an interview in Neurology Today and an article the Texas Neurological Society newsletter.

To determine level 1.5 (“early dementia) or 2.0 (“moderate dementia”) neurocognitive impairment, the neurologist uses the history, neurological exam, and neuropsychological testing. In addition, the retired player must exhibit functional impairment general consistent with the criteria in the Clinical Dementia Rating Scale (CDR) in the areas of community affairs, home & hobbies, and personal care which results from cognitive loss and not other causes (such as a physical handicap or injury, chronic pain, or sleep apnea).  A sworn statement of a third party is used to corroborate the retired players’ functional impairment when there are no other documents available to corroborate. The diagnostic criteria, testing and documentation must be generally consistent.  The neurologist is to use “his or her best judgment” in assigning CDR scores and sound medical judgement and best practices in assigning impairment ratings.

This process is much different from the one we use to determine cognitive impairment in clinical practice where we obtain a history from the patient and sometimes family members and friends, perform a neurological exam including the MMSE or MoCA, and obtain testing which may include blood tests, a scan of the brain, and neuropsychological testing. Blood tests, a scan of the brain, and polysomnograpy to exclude other causes of cognitive impairment are not done as part of the retired player’s evaluation.

The settlement only used the last 3 parts of the CDR (not the first 3 parts). Although the CDR has been validated for use in Alzheimer’s disease… the use of the last 3 parts of the CDR have not been validated in this population of retired players. There is significant potential for under and overreporting of functional impairment with the required use of the CDR and a clinical affidavit…

The appeals claim that persons with level 2 do not drive and do not or cannot work. However, this is not accurate since about 1/3 of people with Alzheimer’s disease drive and some people with mild Alzheimer’s disease still work.  MMSE scores above 24 have been alleged to be inconsistent with cognitive impairment which is clearly inaccurate as the test may be influenced by age and education and is not sensitive for mild dementia.  In a study of 304 consecutive referrals to a university-based outpatient memory clinic, there were 70 subjects with MMSE scores of 30/30 or 29/30. 43% were found to have moderate to severe memory impairment.

It wasn’t so long ago that the NFL launched an all-out war against Dr. Bennet Omalu as documented in the movie, Concussion, and I fear this is happening again, only instead of one doctor, several have found themselves in the NFL’s crosshairs and are unwilling to speak out, as the doctor from the conference said, “because she is now legally muzzled by the formidable law firms representing the NFL.”  It stands to reason, that few doctors would risk the kinds of attacks endured by Dr. Omalu.

I’ve spoken with many lawyers representing players in the settlement and all have expressed concerns as to how dementia claims are being targeted.  Like the doctors, however, most find it risky to their careers to speak out publicly.

Tighe notes that he believes the possible reason for the second audit of his claims reverts to the fact that Dr. Nicholas Suite, who has since been dismissed as a MAF physician in a similar manner to Dr. Evans, did a records review of his claims.

When they were initially audited, the doctors who’d performed the exams seemed to be under scrutiny, so he sent the records to Dr. Suite, who was the closest MAF physician to his area for a review of the medical records.  Dr. Suite concurred with the examining doctors’ diagnoses, through his records review, which Tighe points out is the same process undertaken by the AAP and is not prohibited by the settlement agreement.

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Why is BrownGreer performing these excessive audits, when only 10% of approved claims are required to be audited per the settlement agreement?  Why hasn’t Chris Seeger intervened, or if he has and that was ineffective, why hasn’t he filed a motion of this nature?  The NFL did not become an ally just because the lawsuit was settled–in fact–they appear to have feigned a gentle lamb during negotiations only to emerge as a roaring lion upon implementation of the settlement.

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Tighe notes that multiple audits amount to an amendment of the claims process that would require notice to class members.  “The Claims Administrator has implemented additional requirements that:

  • allow the Claims Administrator to continue the Claims Process forever simply by issuing another audit “at any time” it so desires, eviscerating Movants’ due process rights;
  • add substantive requirements Movants did not agree to; and
  • make it more difficult to obtain payment, prove a claim and potentially will result in the inability to prove a claim.

Such a change cannot be implemented except by formal amendment to the Settlement Agreement including proper notice to the affected Class Members due to the material adverse effect on the rights of the Movants.”

In August 2017 Tighe filed a motion asking the court for clarity regarding implementation of the settlement agreement, but, “On or about November 3, 2017, the Court entered an order which provided that “movants must proceed through the Claims Administration process, and if the claims are denied, movants must follow the proper appeals process”. See November 3,
2019 Order, ECF No. 8882. Movants have participated in the Claims Process, but the Claims Administrator has changed the rules to the detriment of Movants,” he writes.

Tighe recalls a statement made by Claims Administrator Orran Brown on June 29, 2017 at a Miami Dolphins players town hall meeting: “This Settlement Agreement is our playbook, this is what we put to work. We make this program successful because we administer it – we implement it the way it’s written, the way the Court approved it, and we do it quickly and we do it correctly.”

I went back and re-watched part of the town hall, which in retrospect seems more like a used car salesman’s pitch than an informational meeting.

At the 11:45 mark Chris Seeger says, “I will also tell you that the experts that we hired to set up these baseline tests–I understand they’re complicated and they take hours, they do, but they are state of the art. We had the absolute best neurologist and neuropsychologist put this together the absolute best.”

Grant Iverson was the neurologist he references, and he seems to be the best choice from an NFL perspective only, since he does not consider a link between head trauma from contact sports such as football to be causal to later neurological damage or suicidality.  On information and belief, the neuropsychologist was and is working for the Bert Bell Pete Rozelle Disability Plan and has rendered very few qualifying diagnoses through his testing there.

At the 12:49 mark, Chris Seeger says, “We’ve got two levels of dementia and the reason we did that is very important.  Level 1.5 is early dementia.  We didn’t want a guy to have to wait until he gets full-blown dementia before he can collect the benefit.”

My response—”then why are you permitting audits of almost every dementia claim that players file?”

At the 13:26 mark, Seeger says, “There is no requirement in this settlement that you have to prove causation…you just need a diagnosis.”

He fails to point out that if you have headaches or sleep apnea, or if you have a past or present substance abuse issue, or even if you have been diagnosed with mental illnesses such as depression or PTSD, the doctor will have to justify in his diagnosis why he believes football play and concussions, rather than these other elements are responsible for the dementia he’s diagnosed.

Seeger then encourages players to go through the BAP which according to numbers crunched earlier this month has produced 88 qualifying diagnoses out of 8,238 examinations.  This would seem to refute all of the above statements.

Claims administrator Orran Brown’s independence has been proclaimed time and again, including in the recorded town hall.  The truth is that Orran Brown must work with and satisfy both the NFL and Mr. Seeger, as lead counsel.  Seeger stated that he’s worked with Brown in other litigation but what he has not explained is that he, Brown, the Paul Weiss attorneys representing the NFL, along with several other firms and claims administrators are repeat players in the mass-tort litigation scene, and their relationships are compared to a cartel, in certain academic literature.  The key for the repeat players is that they cooperate with one another, which can mean compromising the interest of the plaintiffs who seek compensation in order to maintain a good working relationship with each other, which is necessary to acquire the lucrative appointments from federal judges who are looking for proven deal closers.

This also explains why those who may break ranks, or those outside that circle, who dare to question the process will find themselves under attack.  I wrote about a few examples of this here.  I believe this is also why MDL judges tend to keep as much dissent as possible off their public dockets.

Unfortunately, I expect to see much of the same when responses are filed to Mr. Tighe’s motion.  I hope, however, that I’ll be proven wrong, and that Seeger will stand with plaintiffs’ counsel rather than the NFL on this issue.  Federal rules dictate that responses are due within ten days of the filing date which would mean that we’ll have an answer by March 6, unless a time extension is requested.

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