Beyond Structured Settlements

ASNP 2012 Annual Meeting

The Academy of Special Needs Planners (ASNP) hosted its Sixth Annual Conference March 8-10, 2012 in Memphis, Tennessee. Consistent with its prior conferences, ASNP and Conference Chairperson Michele Fuller provided an exceptional educational experience featuring preeminent speakers, valuable topics, quality handout materials, plus effective interaction with sponsors and exhibitors.

ASNP is one of three national associations of attorneys, the others being the Special Needs Alliance (SNA) and the National Academy of Elder Law Attorneys (NAELA), whose members engage in special needs planning. The primary difference between special needs planning and settlement planning is that special needs planning includes clients whose disabilities result from many causes including but not limited to personal injury or workers compensation accidents.

One of the highlights of the ASNP conference was a special introductory program titled "Basics of Special Needs Planning" presented by Fuller and two other nationally renowned special needs attorneys, Kevin Urbatsch and David Lillesand. This program addressed the core components of special needs planning (including the role of structured settlements), explained public benefits, and discussed the basics of special need trust (SNT) administration.

Structured settlements were also addressed by other ASNP presenters:

• Rene Reixach - During his presentation titled "Impact Litigation", Reixach highlighted continuing litigation whereby state Medicaid agencies are attempting to disqualify SNTs funded with structured settlements arguing the existence of the secondary market makes structured settlement annuities "saleable" and therefore "countable" as an "available resource".
• Eric Skidmore - Skidmore, a Supervisor in the Office of SSI and Representative Payee Policy at the Social Security Administration (SSA), provided a "Social Security Update" during which he reconfirmed an unpublished SSA position supporting what Reixach reported - i.e. the SSA believes the existence of the secondary market renders structured settlement annuities "available resources" that potentially disqualify special needs trusts beneficiaries from receiving Medicaid.
• Jason Lazarus - Speaking about "Liability MSAs", Lazarus reconfirmed the current cost advantages of funding Medicare Set-Aside arrangements (MSAs) with structured settlement annuities as opposed to cash. His presentation included structured settlement case examples that underscored this cost advantage.

One glaring omission that characterizes most national structured settlement and settlement planning conferences is the surprising lack of attention paid to real life problems and issues experienced by persons with disabilities and their families. The 2012 ASNP conference emphasized these real life problems and issues with three valuable presentations:

• Annette Hines and Linda Brown - Hines and Brown, both special needs attorneys whose families include persons with disabilities, spoke about "Transition Planning" - the change in status for disabled persons from behaving as a student to assuming emergent adult roles in the community. Subtopics discussed: a "Day in My Life" from a parents' perspective; myths about special needs planning; transition agencies; disability support systems; selecting trustees and guardians; role of guardians; personal budgets; housing options including Section 8 qualification and the rent vs.buy decisions; plus group home issues including expense sharing.
• Vincent Russo and Michael Amoruso - Russo and Amoruso presented a series of video vignette interviews of families with disabled persons in their discussion titled "Creating the Right Plan for the Right Situation." Each of the interviews originally appeared on the television show "Family Comes First" for which Russo serves as a host. After the ASNP audience watched each interview, Russo and Amoruso asked questions and offered observations to help ASNP conference attendees learn to differentiate individuals and families on the basis of such issues as: independence; information needs and overloads; life visions; and legal capacity. They emphasized the need to make special needs trusts responsive to specific family situations.
• Harry Margolis and Jerry Hulick - Margolis and Hulick discussed a special needs case study from a financial perspective that emphasized the role of life insurance.  Note: although life insurance companies feature prominently in both the special needs and structured settlement markets, there appears to be almost no overlap among agents distributing their products even though both markets focus on disabled individuals and their families.

Another glaring omission to date at national structured settlement and settlement planning conferences has been the lack of educational inquiry about how the Patient Protection and Affordable Care Act [Affordable Care Act (ACA) - aka Health Care Reform] impacts their customers, their products and their traditional business models. The justification for this educational omission may be the uncertainty resulting from the current constitutional review of the ACA by the United States Supreme Court.

Fortunately, the ASNP has not been paralyzed educationally by this constitutional uncertainty. At the ASNP 2011 Annual Meeting, Cynthia Barrett offered her introductory analysis of how Health Care Reform impacts persons with disabilities. At the ASNP 2012 Annual Meeting, David Lillesand discussed how the prohibition against "pre-existing condition" exclusions mandated by the ACA (already in effect in 22 states) impacts special needs legal practice generally and self-settled (first party) special needs trusts specifically.

In summary, based upon his experience in Florida, where the ACA's prohibition against pre-existing exclusions currently exists, Lillesand believes:

• The need for self-settled (first party) special needs trusts has decreased (except when a beneficiary requires long term institutional care) because the ACA provides better insurance options than Medicaid for many persons with pre-existing medical conditions including personal injury victims.
• Existing self-settled (first party) special needs trusts should be reviewed, in the context of the ACA's prohibition against pre-existing condition exclusions and available medical insurance options, and in many cases terminated.
• Damages for future medical costs in personal injury lawsuits could be reduced assuming the premium costs of newly available insurance premiums become admissible in proving and/or defending damages.

Apropos to transition planning for persons with disabilities and terminating special needs trusts, Travis Finchum, Fuller and Urbatsch spoke about "Trust Transitions" - what to do when your bank trustee doesn't want you anymore or you don't want them? Their subtopics included: "the dark side of pooled trusts"; security of funds managed by individual trustees and pooled trusts; trust protectors; questions to ask potential private professional trustees; fiduciary certification and standards; plus discussion and analysis of trust provisions and revision issues.

To help ASNP attendees improve their legal practice, Steve Riley addressed "Key Strategies for Growing Your Practice and One Sure Fire Way to Kill It". The killer, according to Riley: "Inertia - which is easy; but change is hard" - which is also a good lesson for structured settlement and settlement planning stakeholders.

Congratulations to Chairperson Michele Fuller, the speakers and exhibitors for another outstanding ASNP educational conference. For S2KM's reporting about prior ASNP educational conferences, see the structured settlement wiki.

Structured Settlement Metrics - 2

Why should defendants or liability insurers ever agree to settle a personal injury case using a structured settlement?

Although this question may seem counter intuitive to current structured settlement stakeholders, it represented a fundamental issue when structured settlements were introduced in the late 1970s and early 1980s.

The historic sales rationale for defendants and liability insurers to endorse, promote and fund structured settlements:

• Studies show 9 out of 10 lump sum recipients "squander" their entire settlement within five years.
• Structured settlements enable recipients to live free of public benefits.
• Structured settlements reduce claim costs.
• Structured settlements help defendants settle cases that would otherwise go to trial.
• Structured settlements represent good public policy.

Although still marketed by some sales persons, the first two justifications for defendants and liability insurers to promote and fund structured settlements have been exposed as "myths" by Jeremy Babener and David Lillesand respectively. No studies exist that show 9 of 10 lump sum recipients dissipate their lump sums within five years. Worse, frequent use of the pejorative term "squander" in the context of this dissipation study myth attaches an unfair and unwarranted stigma to injury victims. Even assuming injury victims dissipate lump sums, the reasons could be as varied as payment for justifiable expenses with inadequate settlements (compared with actual lost wages, medical expenses and inflation) or pay down strategies to qualify for Medicaid.

The idea that seriously injured structured settlement recipients can survive without public benefits is nonsense - a Tea Party pipe dream. At least prior to health care reform, no insurance company would offer medical insurance at any price for brain damaged babies, serious burn victims, or quadriplegics. Medicaid represents the only medical insurance available for seriously injured (special needs) claimants whether they settle with a lump sum or a structured settlement. As underscored by Lillesand, "without Medicaid, seriously injured accident victims die" because they cannot gain access to our medical system without an insurance card. Completely contrary to this public benefit myth, how best to integrate structured settlements with Medicaid and Medicare represents an increasingly important focus for personal injury settlement planning.

Based upon the above sales rationale, however, most U.S. liability insurers and self-insured defendants have developed structured settlement programs. According to a 2011 "National Litigation Management study" commissioned by the Council on Litigation Management (Litigation Management Study), structured settlement represents the "most penetrated external initiative" among 30 litigation-related service areas analyzed based upon interviews with leading litigation management executives.

Many structured settlement programs endorsed and promoted by liability insurers and self-insured defendants (defense structured settlement programs) share certain common characteristics including:

• Approved lists of annuity providers (life companies).
• Approved "brokers" who also serve as agents for the approved life companies.
• Proactive case identification of "good candidates" for structured settlements.
• "Early involvement" by the defense structured settlement broker.
• Defense broker attendance and participation at negotiations and mediations.
• Structured settlement funding by defendants or their liability insurers utilizing annuity financing ("buy and hold') or qualified assignments.

Some defense structured settlement programs also feature:

• Defense funding utilizing an affiliated annuity provider;
• Commission sharing by the defense broker with the defendant or liability insurer. Note: such commission sharing generally utilizes a life insurance agency affiliated with the defendant or liability insurer and may or may not be disclosed to injury victims, their attorneys, mediators and/or judges.

The National Litigation Management Study also found that "litigation executives are not happy with the metrics and analytics available to them." When asked "how effective are your metrics in measuring the effectiveness of your litigation program", more than 74 percent of the study's participants rated their available metrics as "Fair" or worse. In the words of Mike Saltman, President of Esquire Corporate Solutions: "to be truly successful, national service programs must be able to deliver the very metrics and analytics that participants said they are seeking: quality, performance, and satisfaction levels. These are the metrics that a national service provider must be able to give to its clients in today's environment."

Many defense structured settlement programs do include performance metrics of which the most common are:

• Annuity premium generated by the structured settlement program; and
• Success ratio - the percentage of targeted structured settlement cases that ultimately settle with a structured settlement.
• Note: some defense structured settlement programs also attempt to measure the cost savings resulting from the use of structured settlements.

Why, when and how should defendants or liability insurers ever agree to settle a personal injury case using a structured settlement?

Bottom line: to answer that question and to evaluate the "quality, performance and satisfaction" of their structured settlement programs, defendants and liability insurers should analyze (and perhaps re-think):

• Program justification
  • Structured settlements reduce claims costs.
  • Structured settlements help defendants settle cases that would otherwise go to trial.
  • Structured settlements represent good public policy.
• Program characteristics
• Program metrics
  • Annuity premium generated by the structured settlement program.
  • Structured settlement success ratio.
  • Cost or cost savings.

S2KM will continue to discuss "structured settlement metrics" in subsequent blog posts which also will be featured on the structured settlement wiki.

ASNP 2011 Annual Meeting

The Academy of Special Needs Planners (ASNP) hosted its Fifth Annual Conference March 11-12, 2011 in San Francisco. Co-chaired by Kevin Urbatsch and Michael Gilfix, the 2011 ASNP conference highlighted a growing knowledge gap between traditional structured settlement consultants (many of whom aspire to be settlement planners) and special needs attorneys (whose professional focus increasing includes settlement planning).

ASNP is one of three national associations of attorneys, the others being the Special Needs Alliance (SNA) and the National Academy of Elder Law Attorneys (NAELA), whose members engage in special needs planning. The primary difference between special needs planning and settlement planning is that special needs planning includes clients whose disabilities result from many causes including but not limited to personal injury or workers compensation accidents.

Beyond the quality of speakers and value of topics, ASNP conferences provide exceptional educational experiences for three additional reasons:

• Handout materials - Whereas most speakers at structured settlement conferences provide attendees with a power point handout or no written handout, most ASNP speakers provide attendees with original, topic-specific professional papers (in addition to outlines and/or power points) captured on a digital thumb drive.
• Sponsors and Exhibitors - Among the several national conferences S2KM attends, ASNP and NAMSAP provide the best interaction among sponsors, exhibitors and attendees. ASNP's interaction includes designated breaks when attendees are encouraged to meet with sponsors and exhibitors as well as designated tables for sponsors and exhibitors during lunch to promote extended and focused discussions.
• Knowledge of Attendees - Because ASNP conference attendees are special needs attorneys who already share a relatively high level of common professional knowledge, ASNP speakers have the freedom to expand the collective knowledge domain of attendees rather than merely reinforce existing shared knowledge.

ASNP's 2011 Speakers and Highlights

• Vincent Russo - Alternatives to Special Needs Trusts - Russo, one of ASNP's founders, highlighted planning uncertainties that justify consideration of alternative special needs strategies. In the context of such uncertainties, including life expectancies plus changes in Medicaid and estate tax laws, Russo utilized videotaped case examples to discuss several alternatives to SNTs.
• Robert Wood - Qualified Settlement Funds - Wood is a frequent speaker at structured settlement and settlement planning events. His ASNP presentation addressed single claimant QSFs and attorney fee QSFs including bad fact patterns, abusive cases and alternative definitions for "multiple claimants". Wood also discussed practical QSF issues such as the termination process, what to do with left-over assets and QSF administrative costs. Except for abusive cases, Wood believes the IRS actually likes QSFs.
• Rafael Gonzales - MSAs and Special Needs Planning - Gonzales' presentation addressed mandatory insurer reporting, conditional payments and Medicare set-aside arrangements. MSA's have become a frequent topic at almost every structured settlement and settlement planning conference - and with good reason given the many and frequent new developments. Gonzales' presentation featured summaries of the most recent case law, regulatory developments and legislative proposals.
• David Lillesand - SSI Update - Lillesand's annual Social Security Income summary for ASNP included detailed analysis of Social Security Regional Chief Counsel precedents for 2009 and 2010 some of which impact structured settlements used to fund SNTs. Lillesand also highlighted three new POMs for SNTs. Based upon his review of recent Social Security rulings, Lillesand identified a potential new issue for attorneys - expanded circumstances when legal fees are subject to Social Security approval.
• Patricia Dudek - Creative Housing Solutions - Although disabled persons historically have had few options for home ownership, home ownership is now a more realistic possibility according to Dudek. Her presentation summarized existing federal housing programs as well as financial and legal strategies for achieving home ownership for persons with disabilities.
• Cynthia Barrett - How Health Care Reform Impacts Persons with Disabilities - Barrett's discussion summarized the new Federal health care legislation and advised ASNP attendees about how to adjust their professional practice. Of special interest to structured settlement and settlement planning professionals, Barrett highlighted and discussed the questions plaintiff attorneys are most likely to ask about health care reform.
• David Foster Koth and Gregory Finn - Selecting Corporate Trustees - Among the many issues discussed during this presentation, the portion addressing structured settlement issues was among the best and most interesting. In the context of allocating trust investments among different financial vehicles, the co-presenters provided a balanced perspective on the advantages and disadvantages of structured settlements as well as the role of the secondary structured settlement market.
• Ruth Phelps - Community Funded SNTs - When a community establishes a special needs trust, several important planning considerations exist. Phelps used a case example to discuss these issues and offer a model planning solution.
• Professor Hank Greely - Diagnostic Genetic Testing - Greely, a leading expert on health law and the biosciences, summarized recent genetic testing developments including the impact of genetic testing for civil litigation (future medical costs) and insurance (age ratings).
• Michelle Ward - IRA Tax Planning - Ward provided a detailed analysis of IRA taxation focusing on distribution options and existing Federal regulations under IRC § 401(A)(9)..

Congratulations to ASNP for another outstanding educational program.

For S2KM reporting about past ASNP conferences and other settlement planning and structured settlement professional associations, see S2KM's structured settlement wiki.

25 Questions to Evaluate Pooled Trusts

Health care reform (Patient Protection and Affordable Care Act), enacted on March 23, 2010, has re-defined the structured settlement and personal injury settlement consulting marketplace: whether current participants realize it - or (more probably) do not.

Among the strategic consequences of health care reform:

• An estimated 16 million more Medicaid participants - and therefore:
• More special needs trusts;
• More special needs attorneys;
• More structured settlement annuities payable to trustees.

Without focusing specifically on health care reform (not then enacted), the ASNP 2010 Annual Meeting included valuable presentations and handout resources indirectly related to health care reform, structured settlements and settlement planning/consulting.

Among those valuable presentations was Evan J. Krame's analysis titled "Not Very Special Trusts: Fixing Trusts to be Special and Using Pooled Trusts". As part of his ASNP trust analysis, Krame introduced a document he wrote titled "25 Questions to Evaluate Pooled Trusts".

In addition to his legal practice and teaching activities, Krame serves as President of Shared Horizons, Inc. Shared Horizons is trustee of the Wesley Vinner Memorial Trust (a pooled trust) serving people with disabilities in the District of Columbia and Maryland.

Krame has granted permission for S2KM to re-publish his list of 25 Questions here in S2KM blog format.

Trust Structures

• Check the Trust Agreement and Joinder Agreement? What do the documents say? For example, what powers does the trustee have?
• Is the trust approved and monitored by any state agencies?
• Who/what is really serving as the trustee? Is it the non-profit organization that created the trust or is it a third party hired to administer the trust?

Is this Trust Right for You?

• What are the costs of participation? Is there an initiation fee, an annual fee or a termination fee?
• How are the disbursements approved? What is the ease and method of disbursements? Who signs disbursement checks?
• What is the availability of advocacy on behalf of the beneficiary?
• How do they manage public benefit issues?
• How do they monitor the beneficiaries?
• Will the trust own illiquid or uncommon assets such as cars or homes?

Trust Management

• What is the reputation of the non-profit and/or trust management organizations?
• What is the organizational structure? Check on staff, space and activities.
• Who are the officers of the non-profit? What are their skills and background?
• What is the function of the board of the non-profit trustee?
• How long has the trust been in existence? Is there any reason to believe it could fail? How appropriately is the pooled trust compensated?
• How are the trust assets invested? Is there an investment policy in force that is followed? Is there an independent investment adviser? Is there an investment review committee? Is there an allocation model?
• How do they maintain separate shares? Do they uphold the duty to segregate?
• Is there liability and casualty insurance in place?
• How do they meet their duty to inform? Are statements provided to beneficiaries and state agencies (as required)?
• How do they meet their duty to account?
• How do they maintain their records? Are they precise, complete and accurate?
• How do they meet their duty of confidentiality?
• Do they have and/or employ legal counsel?
• Are there termination procedures in place?
• What is the policy as to funds at the death of a beneficiary?
• How do they handle income tax reporting?

Additional S2KM resources about settlement trusts:

• Settlement trusts re-visited
• Settlement trusts
• Single claimant 468B funds
• Selecting a settlement trustee
• Settlement trust due diligence
• Special Needs Trusts X
• Richard Halpern

ASNP 2010 Annual Meeting

The Academy of Special Needs Planners (ASNP) hosted its 2010 Annual Meeting in Charleston, South Carolina March 18-20, 2010. More than 100 special needs attorneys participated as well as nine exhibitors. MassMutual Financial Group was the program sponsor.

The timing of the ASNP 2010 conference was historically significant. It followed by less than one month NAELA's Special Needs Summit and occurred just days prior to enactment of United States Health Care Reform (Patient Protection and Affordable Care Act) on March 23, 2010.

Topics and Speakers

• "Living with Autism" study - Joanne Gruszkos introduced a new study about autism, conducted by Easter Seals with sponsorship from MassMutual. The study addresses family issues and challenges related to life care planning for autistic individuals.
• Special needs trusts - Professor Jeffrey Pennell deconstructed a typical third party special needs trust from a tax and trust attorney perspective, then joined a panel including special needs attorneys Michele Fuller and Kevin Urbatsch to reconstruct the same trust from a more holistic viewpoint. Evan Krame discussed how to fix trusts to make them qualify for special needs purposes and also offered guidance in using pooled trusts. Krame's handout materials included a useful guide titled "25 Questions to Evaluate Pooled Trusts".
• SSI and SSDI Updates - David Lillesand summarized developments impacting Social Security including extensive and valuable reference materials featuring charts, diagrams and recent regulatory rulings.
• Marketing for Special Needs Attorneys - Harry Margolis and Vincent Russo discussed traditional and non-traditional methods for special needs attorneys to market their expertise. Margolis' non-traditional analysis complemented an earlier NAELA webinar by ASNP COO Mark Miller. Margolis provided an introductory overview of web 2.0 including recommendations about specific social networking tools.
• IRC 468B Qualified Settlement Funds - Jason Lazarus re-introduced QSFs emphasizing practical applications as well as expanding professional opportunities for special needs attorneys in settlement planning. Lazarus addressed current political issues impacting the use of QSFs in single claimant cases.
• Special Needs Advocacy and Litigation - Patricia Harrison spoke generally and summarized historically federal and state based special needs litigation. Saundra Gumerove spoke more specifically about special education advocacy and litigation.
• Additional topics - Sanford Mall spoke about Military and Veterans benefits as increasingly important for special needs planning. Mall separately addressed how to obtain and coordinate funding for healthcare. Dr. Harriett Mall discussed the psychology of poverty.

Congratulations to ASNP 2010 program co-chairs Frank Johns and Franchelle Millender for continuing ASNP's high standard of educational excellence. In addition to interesting topics and speakers and valuable handout materials, ASNP conferences are also characterized by their well-qualified attendees and informative exhibitors with whom ASNP provides substantial opportunities for interaction.

Prior S2KM blog posts about the Academy of Special Needs Planners (ASNP) - which are also accessible on S2KM's structured settlement wiki:

• 2009 ASNP Annual Meeting
• 2008 ASNP Annual Meeting
• 2007 ASNP Annual Meeting

NAELA Special Needs Summit - 3

This S2KM blog post strategically analyzes the National Academy of Elder Law Attorneys (NAELA) 2010 Special Needs Summit from an Internet-based knowledge management (KM) perspective. The NAELA Special Needs Summit occurred February 25-27 in New Orleans. Prior S2KM blog posts summarized the NAELA Special Needs Summit and analyzed the NAELA Special Needs Summit from a structured settlement perspective.

This S2KM review also considers a March 9, 2010 Web 2.0 webinar for NAELA members by Mark Miller titled "Web 2.0: The Good, the Bad and the Ugly". Miller is Chief Operating Officer of ElderLawAnswers; General Manager of Lawyers Life Network; and Director of Operations and Business Development for the Academy of Special Needs Planners. Miller has more than 15 years experience in sales and business development for web-based service providers.

Positives

• Knowledge resources - Whether the subject is elder law, special needs law or personal injury settlement law, NAELA's membership possesses substantial knowledge resources. Specific to disabled persons, NAELA's knowledge encompasses technical legal knowledge as well as relationship knowledge with disability leaders and disability community stakeholders.
• Knowledge culture - NAELA promotes and prioritizes legal scholarship. Examples include: the NAELA Journal and NAELA's annual writing prize for law students. NAELA promotes and practices knowledge sharing. NAELA's unprograms offer a non-hierarchical and interactive learning alternative to traditional lectures. Compared with traditional lectures, NAELA's unprogram learning model is more comparable with how collaborative learning occurs on the Internet.
• Focus on web 2.0 - NAELA has identified and offered learning resources on web 2.0 and social network technologies. In addition to Mark Miller's March 9, 2010 web 2.0 presentation, NAELA also featured S2KM's web 2.0 for lawyers wiki at its 2008 National Symposium.
• Mark Miller's web 2.0 presentation - Miller's 90 minute web 2.0 presentation was comprehensive. It highlighted many web 2.0 features, tools, and developments and offered advice for NAELA members about blogging; podcasting; web-site design; search engine optimization; news feeds; key word searches; social media; and emerging tools.
• Web 2.0 examples - a growing number of NAELA members, and non-NAELA special needs attorneys, have experimented with web 2.0 tools - especially blogs and podcasts. Examples of special needs and elder law blogs:
  • Harry Margolis
  • David Lillesand
  • Frank Johns
  • Patricia Kefalas
  • John Campbell

Negatives

• Web 2.0 learning disconnect
  • Neither the NAELA Special Needs Summit nor Miller's web 2.0 webinar made any attempt to integrate the web 2.0 medium itself into their learning programs.
  • If "the medium is the message" (to quote Marshall McLuhan), NAELA has not yet processed or responded to that message from a web 2.0 learning perspective.
  • NAELA's conference was typical of almost all professional association education conferences. Learning takes place in multi-purpose hotel meeting rooms with no Internet resources or integration. Laptops are discouraged by the general failure to provide power outlets. With the notable exception of NAELA's unprograms, the speakers lecture with limited audience interaction. Supplemental learning resources include power points, hardcopy handouts or web 1.0 flash disks.
  • Miller's web 2.0 webinar utilized a traditional web 1.0 powerpoint. His extensive presentation was lecture format with limited interactivity and no asynchronous features.
  • Typical of most introductions to the Internet, Miller's web 2.0 webinar focused primarily on identity and marketing - with no discussion about whether and how web 2.0 can enhance and accelerate learning or what learning issues and strategies occur with web 2.0.
  • As one example of a web 2.0 learning issue, many college professors (the paragons of old school learning) are banning laptops from their classroom and view in-class Internet surfing as a distraction. These paragons, however, typically lack any ability to integrate discussions (example: Socratic teaching) or Internet resources into their classroom experience. Their teaching model is a hierarchical lecture which is contrary to how the web 2.0 Internet functions.
  • Teaching web 2.0 using web 1.0 (or predecessor technologies) is akin to trying to teach people to swim or play basketball in a traditional classroom - using hardcopy text with no diagrams - instead of utilizing a swimming pool or a basketball court. After an hour or a semester in the classroom, the students still won't be able to swim or play basketball.
• Role of knowledge management
  • NAELA's members all qualify as knowledge workers. Without specifically studying knowledge management, NAELA has spent 25 years helping its members identify, expand and manage knowledge.
  • The changing Internet medium (currently web 2.0 featuring social network technologies) prioritizes knowledge and how you manage knowledge:
    • Knowledge generally becomes more transferrable and complex.
    • New knowledge tools, systems, networks, teams and leaders emerge.
    • New business models evolve requiring online skill sets and related knowledge services.
  • Unless NAELA and its members study and understand Internet-based knowledge management, how will they successfully transfer their professional knowledge (including relationship knowledge) to web 2.0?
  • And what happens to those professionals and professional associations who are slow (or unable) to successfully transfer their knowledge to the Internet? How will they compete? Who will want (or allow) them to participate on Internet-based knowledge teams and networks?
  • Neither Miller's web 2.0 webinar nor NAELA's first-ever Special Needs Summit discussed knowledge management.
  • How could knowledge management have improved the NAELA Special Needs Summit? As one example, the NAELA Summit made no attempt to define special needs law or to differentiate special needs law from elder law or personal injury settlement law. NAELA could have used (and still could use) various types of knowledge maps to:
    • Define these strategically important knowledge domains and related knowledge boundaries;
    • Identify stakeholders and online learning resources within each community of practice;
    • Highlight transactional events and transferable knowledge opportunities for NAELA members within each knowledge domain.

Unsolicited Recommendations for NAELA

• Continue to study Internet-based knowledge management - focusing on web 2.0 and social network technologies.
• Develop a web 2.0 learning strategy:
  • Utilizing appropriate learning environments, teachers and tools.
  • Introducing participants to online culture, organizational theory and functional skill sets through actual experience.
  • Integrating web 2.0 learning into NAELA's other educational programs.

For Additional Information see:

• Denham Grey's KM wiki
• S2KM prior blog posts
  • Web 2.0 for Lawyers Concept Map - featuring Barbara Bowen
  • Knowledge Management and Structured Settlements

Jeremy Babener Interview

Jeremy Babener , a third year Juris Doctor candidate at New York University has completed a seminal structured settlement paper a copy of which is available for download online in pdf format.

S2KM introduced, summarized and reviewed Jeremy Babener's paper, titled "Justifying the Structured Settlement Tax Subsidy: The Use of Lump Sum Settlements", in two prior S2KM blog posts:

• Dissipation Studies; and
• Jeremy Babener's Dissipation Paper.

This S2KM post features an exclusive interview with Jeremy Babener about his dissipation paper.

S2KM: Jeremy, what are the principle conclusions of your paper?

Jeremy Babener: The structured settlement subsidy, or tax exclusion, is premised upon the belief that claimants prematurely dissipate lump sum settlements. This belief has long been held within the structured settlement industry, and is frequently cited as a proven fact. Anecdotal evidence from industry practitioners, representing a broad cross-section of interests, certainly suggests the belief to be true. However, the article explores the available empirical data. It concludes that the frequency of the dissipating claimant has yet to be proven, and that citations relied upon as evidence lack applicability, or sometimes any substance at all.

S2KM: What surprised you the most about your findings?

Jeremy Babener: The thesis itself is surprising. The use and citation of an unproven statistic by so many in an industry exposes how reliant we are on others’ accurate reporting. It also exemplifies how assertions consistent with one’s previous experiences can bypass criticism.

S2KM: How did you become aware of, and interested in, structured settlements?

Jeremy Babener: I clerked for the U.S. Department of Justice, in the Federal Tort Claims Act Section during the Summer of 2008. As some of the cases moved toward settlement, I was introduced to the concept of the structured settlement. Some commentators call it “a benefit to both sides.” I wanted to learn more.

S2KM: Why did you focus your first structured settlement paper on dissipation studies?

Jeremy Babener: Writing this paper was not planned. In my research for a different article on the single claimant qualified settlement fund issue, I repeatedly read that “90% of lump sum claimants squander their award within five years.” Though I attempted to track down the source of the statistic, I was most surprised to find that I could not. I thought it important for the structured settlement industry to know. Of course, nearly all those I spoke to in the industry believe that most lump sum claimants do prematurely dissipate their settlement, based on personal and anecdotal experience.

S2KM: Did you write the paper for a specific class or seminar?

Jeremy Babener: I wrote the paper during my year in the NYU Journal of Law & Business’ note-writing program, and also for a law course entitled “Tax and Social Policy.”

S2KM: Where and when do you expect to publish your paper and who is your intended audience?

Jeremy Babener: I will be submitting my article to an array of journals and law reviews in August. I wrote the article with those in the structured settlement and factoring industries in mind. However, I think it pertains to many areas where long-term care and financial stability are important, including Medicare.

S2KM: How can interested persons obtain a copy of your paper?

Jeremy Babener: The abstract and draft of the article are available on SSRN. I will also be launching a website with Patrick Hindert. It will provide ongoing posts addressing structured settlement issues, including those introduced by this article.

S2KM: How many dissipation studies did you review as part of this project?

Jeremy Babener: The article reviews twelve studies. Four are American, published between 1936 and 1971. The eight others come from Britain, Canada, Australia, and Scotland, between 1973 and 1994. The article also reviews reports by the Canadian Manitoba Law Commission (1987) and the Law Reform Commission of Ireland (1996).

S2KM: What additional sources did you utilize in your research?

Jeremy Babener: I learned the most about the industry by speaking with those that populate it, including settlement planners, attorneys, and insurance company representatives. The treatises and articles on structured settlements provided an invaluable list of references. I was also fortunate that inquiries to foreign libraries and governments resulted in the requested reports, enabling me to track down nearly every citation I came across.

S2KM: How does the secondary market for structured settlements impact your paper and your view of structured settlement dissipation?

Jeremy Babener: The ability of structured settlement payees to sell their future stream of income for a lump sum amount undermines the purpose of the tax subsidy (i.e. preventing premature dissipation of settlement monies). On the other hand, the flexibility inherent in the ability to factor encourages personal injury claimants to structure their settlements in the first place, which may decrease total settlement dissipation. The factoring industry has produced statistics suggesting that those payees who factor do so responsibly. The sources of such statistics should be analyzed. A modern study on structured settlement factoring may be needed to appreciate the nuances of the issue.

S2KM: What are the earliest and most recent references you located for the statistic that 90% of lump sum injury recipients dissipate their recoveries in 5 years?

Jeremy Babener: The Journal of Commerce reported the 90%-5-year statistic in 1978, quoting T.V. Mangelsdorf, a life insurance underwriter. Today, some commentators, like Paul Lesti, discuss the statistic without reporting it as fact. However, the statistic is cited as proven in articles, on broker websites, and even in Negotiating and Settling Tort Cases, a treatise available on Westlaw.

S2KM: Based upon your research, is the term "squander" an accurate or fair characterization of injury victims?

Jeremy Babener; Where lump sum recipients exhaust their settlement monies in a shorter time than the monies are meant to last, I believe a more accurate characterization would be "premature dissipation". the term "squander" carries a particularly derogatory tone. Though I am not sure I would put it in such strong terms, Washington & Lee School of Law Professor Adam Scales argues quite convincingly, "What is objectionable in the rhetoric of structured settlement enthusiasts is the unsubtle attribution to tort claimants of characteristics, values and habits that are generally held in contempt in American political discourse: a lack of self-control, and the concomitent propensity to wind up om welfare."

S2KM: Did you locate any evidence that injury victims have a greater propensity than other persons to spend money wastefully or foolishly?

Jeremy Babener: The strongest evidence of lump sum recipients’ propensity to prematurely dissipate their settlement comes from anecdotal evidence throughout the industry. A few studies make conclusions that lump sum recipients spend money irresponsibly. However, such studies often have substantial flaws, lack applicability, or provide conclusions based on subjective judgments. For example, some studies criticize the use of lump sum settlement monies on ordinary living expenses.

S2KM: Assuming injury victims do dissipate lump sums, what other explanations, besides a propensity to squander, might explain this occurrence?

Jeremy Babener: The “propensity to squander” addresses the post-settlement decisions of lump sum claimants. However, the settlement amount itself cannot be overlooked. It is important to note the fact that where claimants accept settlements they receive less than the value of their original claim. Once legal and other fees are subtracted, the leftover sum may simply be inadequate. Thus, the money will not last as long as originally intended. For example, a 1984 Australian study of 86 accident claimants found many examples of inadequate settlements, but only seven examples of mismanagement.

S2KM: Did you find any evidence that injury victims manage lump sums responsibly?

Jeremy Babener: Yes, though the studies are either old or foreign. The famed 1971 American “Widows Study,” which some cite to as the source of the 90%-5-year statistic, actually found unwise spending “very much the exception.” Foreign studies also suggest that lump sum recipients can and often do act responsibly, including studies from Scotland (1993), Australia (1992), and Canada (1983). Foreign law commission reports have made similar conclusions.

S2KM: In your opinion, why haven't there been any recent and relevant dissipation studies in the U.S.?

Jeremy Babener: The industry considered performing such a study in the mid-1990s. Then, a few years ago, at least one insurance company was contemplating the idea. Some believe the study would be very difficult to perform; others believe the industry is concerned that the results might not be entirely favorable. I think that there has been little need to prove the contention because so many in the industry, based on personal and anecdotal experience, believe it to be true.

S2KM: Are you planning to write any additional papers related to structured settlements?

Jeremy Babener: I have drafted an article on the use of qualified settlement funds by single party claimants. I will be sharing it with those in the industry prior to submitting it to the NYU Journal of Law and Business this Fall.

Thank you, Jeremy for this interview and for sharing your dissipation paper which has been long overdue in the structured settlement industry. Good luck and future success with your studies, your writing and your professional career.

For related S2KM blog posts, see:

• Dissipation Studies;
• Jeremy Babener Dissipation Paper;
• Structured Settlement 2009 Strategic Analysis;
  
• Structured Settlement Surveys;
• J.G. Wentworth Survey;
• Settlement Consulting;
• Structured Settlement Credo.

Jeremy Babener's Dissipation Paper

Jeremy Babener, a third year Juris Doctor candidate at New York University School of Law, has completed a seminal research paper titled "Justifying the Structured Settlement Tax Subsidy: The Use of Lump Sum Settlements" which identifies and analyzes 12 historical dissipation studies plus two law commission dissipation reports.

This S2KM blog post summarizes and reviews Babener's dissipation paper. A prior S2KM post introduced dissipation studies and "claimant centric" business models as strategically important for structured settlements and settlement planning. A subsequent post will feature an interview with Jeremy Babener about his dissipation paper.

Babener's conclusions about injury victim dissipation studies:

• No existing published dissipation study supports either of two structured settlement industry claims:
  • Injury victims "squander" lump sum awards;
  • Nine out of 10 lump sum injury victim recipients dissipate their awards within five years - the "90% - five year" statistic.
• Dissipation studies exist which reach the opposite conclusion - injury victims have no more propensity to dissipate lump sums than non-injury victims.

Scope: Although Babener's dissipation paper is comprehensive, it focuses on a specific topic - the 90% - five year statistic.

Babener's dissipation paper does not:

• Contend that claimants spend money responsibly. Instead, it "exposes as industry allegory the frequently stated belief that studies have proven [injury victim squandering] to be true." Babener recommends a new United States study to develop "empirical and substantiated" dissipation statistics for injury victims because the United States tax subsidy for structured settlements is premised on this belief.
• Address possible explanations for injury victim dissipation besides "squandering". Other commentators, however, have identified two explanations which deserve greater consideration and analysis:
  • Alternative # 1 - Asset and income qualification requirements for certain government benefits (including Medicaid and SSI) which:
    • Force and re-enforce recipients into poverty; and,
    • For many persons, require asset spend down strategies (dissipation) to qualify.
  • Alternative # 2 - Inadequate funds - where the proposed settlement plans:
    • Don't exist; or
    • Make inaccurate or unrealistic assumptions; or they are:
    • Under-funded; or
    • Improperly implemented; or
    • Badly administered.
• Characterize the secondary market as either proving or disproving claimant dissipation characteristics.

Babener's paper contains six sections - each of which S2KM separately summarizes below.

• Section I - Introduction. Babener focuses on the linkage between the structured settlement tax subsidy and dissipation studies.
• Section II - An Empty Statistic? Babener attempts, but fails, to locate any source supporting the 90%- five year statistic.
• Section III - Other Evidence of Lump Sum Use. Babener reviews other studies casting light on claimants' financial responsibility.
• Section IV - The Informed Conclusions of Others. Babener examines why the unproven 90%-five year assertion endures.
• Section V - Rhetoric of the Dissipating Claimant. Babener addresses the rhetoric of the enduring assertion, calling for a modern American study to answer the question long thought answered.
• Section VI - Conclusion:
  • Appendices (the surveys);
  • The lack of evidence for the 90%-5 year statistic;
  • Other evidence of lump sum dissipation;
  • Evidence of responsible lump sum usage.

Section 1 - Introduction

Babener's paper does not contend that personal injury claimants responsibly expend lump sum settlement monies. Instead, the paper exposes as industry allegory the frequently stated (but unsubstantiated and largely unanalyzed) belief that studies prove injury victims prematurely dissipate lump sums. Babener's paper highlights the federal income tax subsidy for structured settlements and estimates the annual subsidy to total between $360 and $840 million per year assuming $6 billion of annual structured settlement annuity sales. Babener's paper incorporates and builds upon the findings of two other authors who have studied dissipation, Ellen S. Pryor and Adam F. Scales. Babener's paper also reviews and relies upon 12 studies and two law commission reports - most of which are from non-United States countries. Babener also conducted extensive interviews with structured settlement practitioners.

Section 2 - An Empty Statistic?

Babener identifies and traces historic references from 1978 to 2009 citing "insurance studies" which allegedly support the 90% - five year statistic. In every case, Babener finds the reference either lacks any citation or cites to a study that does not support the 90%-5 year statistic. Although articles, treatises and practitioners continue to cite the statistic as proven, Babener's research does not discover any study that supports the 90%-5 year statistic. That statistic, which Professor Scales characterized as "the most consistently repeated 'fact'" in structured settlement law and lore, appears to be a mythical falsehood. Babener does not explore the consequences of this industry myth which extend beyond the scope of his paper.

Section 3 - Other Evidence

Babener summarizes his findings after reviewing 12 dissipation studies plus two law commission reports and references his more detailed analyses of these sources in his paper's Appendices. None of the dissipation studies or reports support the 90% - five year statistic. According to Babener's analysis, seven of these studies, plus two law commission reports support an opposite conclusion: lump sum recipients do not spend their recoveries unwisely.

The law commission reports Babener analyzes are by the Law Reform Commission in Ireland in 1996 and the Canadian Manitoba Law Commission in 1987. The Law Reform Commission of Ireland found "studies recently conducted by the Law Commission and the Disability Management Group of the University of Edinburgh have shown that the risk of dissipation is less than was widely believed and that those awarded very high damages are least likely to fritter away their compensation".

The 12 dissipation studies Babener reviews in his paper are listed here chronologically:

• 1947 U.S. Retirement Railroad Board Compensation study;
• 1959 University of Michigan study;
• 1973 British Personal Injury study;
• 1983 Australian Accident Compensation study;
• 1983 Canadian Auto Accident Compensation study;
• 1984 British Personal Injury study;
• 1984 Australian Traffic Accident study;
• 1987 Canadian Manitoba Law Commission study;
• 1992 Australian Auto Accident study;
• 1993 Scottish PersonaI Injury Compensation study;
• 1994 British Personal Injury Compensation study;
• 1996 Law Reform Commission of Ireland study.

Section 4 - Informed Conclusions of Others

Babener acknowledges that none of the studies he cites and analyzes is directly analogous to 21st century United States injury victims. Babener calls for a modern American study of injury victim dissipation to support the structured settlement tax subsidy.

Section 5 - Rhetoric of the Dissipating Claimant

In discussing and analyzing the continuing rhetoric within the structured settlement industry, especially the pejorative and unproven characterization of injury victims as "squanderers", Babener quotes from Adam Scales' 2002 paper. Scales argues that the image of the dissipating claimant has "intuitive appeal". According to Scales, “What is objectionable in the rhetoric of structured settlement enthusiasts is the unsubtle attribution to tort claimants of characteristics, values, and habits that are generally held in contempt in American political discourse: a lack of self-control, and the concomitant propensity to wind up on welfare." Scales continues, “An essential element of the discussion has been the assumption that successful tort claimants simply cannot be trusted with large sums of money."

Section 6 - Conclusion and Appendices - Babener concludes his paper by calling for a modern American dissipation study. In his paper's Appendices, Babener analyzes existing dissipation studies under three categories:

• Appendix A - frequently cited dissipation studies which do not support the 90%-five year statistic;
• Appendix B - other studies suggesting lump sum settlement recipients dissipate;
• Appendix C - studies offering evidence of responsible money management by injury victims.

For related S2KM blog posts, see:

• Dissipation Studies;
• Jeremy Babener Interview;
• Structured Settlement 2009 Strategic Analysis;
  
• Structured Settlement Surveys;
• J.G. Wentworth Survey;
• Settlement Consulting;
• Structured Settlement Credo.

Dissipation Studies

The United States structured settlement industry has drifted into an era of unprecedented transition and change with stagnant annuity growth and without any articulated industry strategic plan or strategic planning process.

Forces causing structured settlement transition and change:

• Financial service regulatory reform - with consumer protections;
• Tax reform - with reviews of existing subsidies plus potential new tax-subsidized products for disabled persons;
• Health care reform - with expected new rules for Medicaid (special needs trusts) and Medicare (set-aside arrangements);
• Internet-based business models - with improved performance standards and metrics for communication; planning; marketing; learning; product development and work processes;
• Class action lawsuits - exposing bad structured settlement business practices regardless of whether these practices are illegal under current laws;
• Growth of affiliated business markets - special needs planning; lien resolution; the secondary market; Medicare secondary payer practice; life care planning; settlement trusts; and money management of settlement proceeds;
• Retirement and/or death of first generation structured settlement industry leaders.

To recognize strategic change and successfully transition to settlement planning, a larger, more complex business, the structured settlement industry needs new focus, new vision, new leaders, and new "claimant centric" business models.

To better understand and grow their market, the new structured settlement leaders should begin by re-examining industry myths about their customers (injury victims). Where the myths are wrong and misguided, these new industry leaders should reject the historical myths and re-invent structured settlements based upon truth not fiction.

Among structured settlement industry myths, two are especially pernicious, long-standing and related:

• Myth #1: injury victims squander lump sums. Nine out of 10 lump sum recipients dissipate the entire amount within five years.
• Myth #2: structured settlements enable injury victims to live free of reliance on government assistance.

What have been the consequences of these industry myths for the structured settlements?

• Inefficient and anti-claimant business models;
• Product sales instead of settlement solutions;
• Bad business practices - whether or not illegal;
• Lack of market research and product development;
• Selectively incomplete education;
• Defensive and anti-growth political strategies;
• Abandonment of injury victim customers to the secondary market;
• Stagnant structured settlement annuity growth.

What if both myths are false?

Expert commentators have already challenged both myths:

• Adam Scales - When Professor Adam Scales first questioned the myth of squandering injury victims in his remarkable 2002 University of Wisconsin Law Review article titled: "Against Settlement Factoring? The Market in Tort Claims has Arrived", he was reviled by leaders of the primary structured settlement market. Seven years following the publication of Professor Scales' article, structured settlement and settlement planning leaders continue to quote false dissipation statistics and mis-characterize existing dissipation studies to promote a negative and false psychological and financial profile of injury victims.
• David Lillesand - David Lillesand, a leading social security and special needs attorney, has spoken and written about the critical need for serious injury victims to qualify for Medicaid. According to Lillesand, Medicaid is a "life or death" matter for such individuals. Structured settlements do not enable serious injury victims to live free of reliance on government assistance. To the contrary, unless the annuities are paid into a special needs trust, structured settlement annuity payments disqualify injury victims from receiving Medicaid. Even when structured settlement annuities are paid into a special needs trust, the legal rules for structured settlements are either unaddressed by current legislation and regulations and/or uncertain in their application and requirements.

Meet Jeremy Babener , part of a new generation of structured settlement knowledge leaders, and a third year law student at New York University. Babener has accomplished something no one in the structured settlement industry has attempted - a comprehensive review of historic dissipation studies involving injury victims. Babener's new legal research paper, titled "Justifying the Structured Settlement Tax Subsidy: The Use of Lump Sum Settlements," includes extensive Appendices with detailed analysis of 12 dissipation studies relevant to U.S structured settlements.

Babener's paper, which examines and challenges the myth of the squandering injury victim:

• Refutes the existence of any published study supporting the statistic that "90% of lump sum recipients dissipate their recoveries within five years".
• Identifies existing dissipation studies that reach a contradictory conclusion: injury victims have no greater propensity to dissipate money than non-injury victims.
• Incorporates interviews from a cross-section of structured settlement industry practitioners who support the assertion of common lump sum dissipation based on personal and anecdotal experience.
• Calls for a modern study to ground the structured settlement subsidy in proven data.

S2KM begins its public 2009 strategic re-evaluation of structured settlements with a blog series about dissipation studies featuring Jeremy Babener's research. In subsequent posts, S2KM will summarize and review Babener's new dissipation paper and interview Babener about his dissipation research.

For related S2KM blog posts, see:

• Jeremy Babener Dissipation Paper;
• Jeremy Babener Interview;
• Jeremy Babener Responds;
• Settlement Consulting;
• Structured Settlement Credo.

Settlement Consulting - 3

In prior posts about settlement consulting, S2KM:

• Reviewed Joseph DiGangi's discussion at the NSSTA 2009 Winter Meeting titled: "Comprehensive Settlement Consulting in the 21st Century". See: "Settlement Consulting".
• Continued DiGangi's discussion by asking questions and offering comments about "settlement consulting" definitions and scope. See: "Settlement Consulting - 2".

This S2KM post outlines settlement consulting history - from a structured settlement perspective.

S2KM's structured settlement history diagram (developed with graphic artist Keith Burtoft) concludes with the founding of the National Association of Medicare Set-Aside Professionals (NAMSAP) in 2005.

Beginning in 2005, S2KM has continued to monitor structured settlement history by attending and reporting about settlement consulting conferences addressing structured settlements.

For the past three years, S2KM has also published annual reports about structured settlement developments:

• Structured Settlements in 2008;
  
• Structured Settlements in 2007;
• Structured Settlements in 2006.

Using the same categories as S2KM's structured settlement history diagram, here are some of the more recent settlement consulting highlights:

Social Security

• Deficit Reduction Act of 2005 (DRA);
• The Ahlborn Case (2006) - see John Campbell's analysis of the Eighth Circuit's decision which the U.S. Supreme Court unanimously affirmed.
• Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA);
• Additional MSA rules for structured settlements (2008);
• New POMS for Special Needs Trusts (2009) - see David Lillesand's report;

Taxation - see related articles on the Wood & Porter website:

• Banks and Banaitis cases (2005) - attorney fees;
• Murphy case (2007);
• IRS Letter Ruling 200836019 (2008) - Non-qualified 130 assignments and attorney fees.

State Legislation (2005-2008) - see Release 45 of "Structured Settlements and Periodic Payment Judgments" (S2P2J).

• Structured settlement protection statutes;
• Uniform Trust Code;
• UCC Article 9 anti-assignment provisions;
• Medicaid annuity rules.

Other Developments

• Academy of Special Needs Planners (ASNP) founded (2007);
• AIG receives $150 billion U.S. Government bailout (2008);
• Joseph Ricci replaces Randy Dyer as NSSTA Executive Director (2008);
• SSP publishes its "Standards of Professional Conduct" (2008) and begins its Registered Settlement Planner (RSP) certification (2008);
• American Association of Nurse Life Care Planners (AANLCP) founded (2008);
• Several annuity providers depart the structured settlement market (2005-2008);
• Structured settlement annuity premium remains level at $6 billion per year (2001-2008);
  
• Structured settlement surveys identify a larger market (2006-2008);
• Settlement consulting bloggers and podcast providers emerge (2004-2009).

For reasons why S2KM views 1982, 2001 and 2008 as strategically important for structured settlements, see "Structured Settlements in 2008 - 1".