Beyond Structured Settlements

ASNP 2013 Annual Meeting

Although special needs (SN) planning encompasses non-personal injury clients, settlement planning, with and/or without structured settlements, represents an increasingly important component of both the SN market and the educational focus of its practitioners.

The Academy of Special Needs Planners (ASNP) hosted its seventh annual meeting in Austin, Texas March 21-23 which featured the following topics and speakers:

• Impact of the Affordable Care Act on SN Planning - Scott Solkoff
• Modifying Problem Trusts into Effective Special Needs Trusts (SNTs) - Renee Lovelace
• SNT Issues at the Social Security Administration - Eric Skidmore, Sean Balser, Kevin Urbatsch
• The Jimmo v. Sibelius Medicare Settlement - Margaret Murphy
• SSI Update and New Social Security Strategies - David Lillesand
• Medicaid Third-Party Liability Liens Post-Ahlborn - Floyd Faigle
• Settlement Planning Under Changing Conditions - Donna Meyer, Sharon Pope, Patrick Hindert, Jason Lazarus
• Drafting Special Needs Trusts - Nancy Chudacoff, Sheri Sudweeks, Vincent Russo
• Establishing the Financial Needs of the Special Needs Beneficiary - Jerry Hulick
• Administration of SNTs - Travis Finchum, Kathy Christofell, Jerry Hulick, Renee Lovelace
• Determining a Reasonable Attorney Fee - Mary Alice Jackson

Settlement Planning and Structured Settlement Highlights

Affordable Care Act

• ACA and Settlement Planning - The Affordable Care Act (ACA) changes settlement planning in fundamental ways which speaker Scott Solkoff highlighted in his comprehensive review:
  • Reduced personal injury verdicts and settlements.
  • A different calculus for determining future medical damages based upon health insurance costs.
  • Fewer first party special needs trusts (SNTs).
  • Reduced demand for Medicare and Medicaid for persons with disabilities under age 65.
  • New opportunities for special needs attorneys because of the complexity of the ACA.
• ACA, Verdicts and Settlements - S2KM will address the impact of the ACA on personal injury verdicts and settlements in future blog posts.
• ACA, SSA and SNTs - During an ASNP question and answer session moderated by Kevin Urbatsch and featuring representatives of the Social Security Administration (SSA Question and Answer session), the following exchange occurred:
  • Question: will the SSA allow early termination of SNTs to comply with ACA?
  • SSA Answer: right now, any early termination of a SNT will require payment of reversionary interest.

Settlement Planning and SN Attorneys

The ASNP settlement planning panel was one of several presentations which identified expanding opportunities for SN attorneys. Patrick Hindert, author of S2KM's blog, provided an analysis of the settlement planning market which emphasized changing structured settlement business and transactional models. Hindert highlighted the need for better standards and metrics as well as the importance of qualified settlement funds (QSFs) and the secondary structured settlement market. Sharon Pope discussed settlement planning practice issues and provided sample documents to help special needs attorneys expand their settlement planning practice. Jason Lazurus summarized new developments and cases impacting the use of Medicare set-aside arrangements in liability cases.

For SN attorneys to expand their settlement planning practice, ASNP's panel recommended more in-depth study of non-SNT settlement planning issues including the settlement planning market, the settlement planning team and the settlement plan itself. The panel's handout materials also identified a list of settlement planning documents organized among the following stages of the settlement planning process:

• Engagement
• Assessment
• Design
• Negotiation
• Implementation
• Monitoring

In addition to the settlement planning panel, multiple ASNP presenters discussed specific settlement planning issues. In addition to settlement topics and presenters mentioned elsewhere:

• Jimmo v. Sibelius - Margaret Murphy summarized this recent settlement which has important implications for anyone who needs skilled care as well as for skilled nursing facilities, home health and outpatient facilities. As a result of this settlement, Medicare claims should no longer be denied on a rule-of-thumb determination that a beneficiary's condition is not improving.
• WOS v. E.M.A. - Floyd Faiglie made a last minute addition to his Medicaid lien presentation to address this March 20, 2013 U.S. Supreme Court decision. The decision expanded the Supreme Court's previous Alhborn decision; rejected arguments by North Carolina defending its third party recovery statute; and further limits when a state may demand recovery from a portion of a settlement allocated to non-medical damages.
• Modifying Problem Trusts into Effective SNTs - Renee Lovelace recommended a cost benefit analysis formula for analyzing whether and when to modify a problem trust. Her analysis was process-driven and included: identifying problems, possible benefits, options, and cost of changes; quantifying costs and benefits; and determining the extent of any modification.
• Determining a Reasonable Attorney Fee - Mary Alice Jackson reviewed the eight factors listed in ABA Model Rule 1.5 for determining the reasonableness of a fee and discussed those factors in the context of SNTs. Note (added 3/31/2013): In his SSI update (see below), David Lillesand addressed the issue of whether and when SN attorneys need SSA approval of their attorney fees to avoid penalties resulting from poor quality draftsmanship in the Social Security Act attorney fee regulations.
• Establishing Financial Needs of the Special Needs Beneficiary - Jerry Hulick's presentation addressed special care, the special care team, special care information needs, and special care documents outside of the settlement planning context.
• Drafting Special Needs Trusts - Nancy Chudacoff, Sheri Sudweeks, and Vincent Russo presented ASNP's new Model Third Party SNT. Third party SNTs typically are used outside of the settlement planning context.

Structured Settlements

• ACA - Scott Solkoff noted in his ACA presentation that, after the ACA takes full effect January 1, 2014, structured settlements will more likely fund future health insurance costs, which should be lower and more predictable, than future medical expenses.
• "Over-structuring" - The ASNP panel discussing SNT administration (Travis Finchum, Kathy Christofell, Jerry Hulick, Renee Lovelace) emphasized a common complaint among SN attorneys: plaintiff attorneys frequently contact SN attorneys to draft a SNT on short notice after an "over-structured" settlement has already been reached. This panel discussion followed Lovelace's earlier presentation ("Modifying Problem Trusts") during which she highlighted expanding litigation against fiduciaries. S2KM's suggested solutions for fiduciaries to address the problem of "over-structuring": promote QSFs; enforce product suitability standards; or, as a last resort, utilize the secondary market to obtain increased liquidity for the trust.
• Deficit Reduction Act - The ASNP's SNT administration panel did not discuss whether the annuity rules in the Deficit Reduction Act of 2005 (DRA) are applicable to structured settlements. S2KM is not aware of any definitive authority addressing this issue. For S2KM's previous analysis of the DRA and structured settlements, summarizing a presentation by Sylvius von Saucken, see "Inconvenient Questions".
• Secondary Market - The SSA Question and Answer session did not address structured settlements. During a similar session at the ASNP 2012 Annual Meeting, Eric Skidmore, an SSA representative, confirmed an unpublished (and controversial) SSA position: 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.

Congratulations to ASNP and conference Chairman David Lillesand for an outstanding 2013 educational program which also featured two special needs presentations by Lillesand: a supplemental "Back to Basics" program and a Supplemental Security Income (SSI) update.

For S2KM summaries of prior educational conferences of the ASNP, and other professional associations addressing settlement planning issues, see the structured settlement wiki.  For S2KM's listing of Spring 2013 educational conferences featuring settlement planning and structured settlement presentations, see this prior S2KM blog post.

Structured Settlements in 2012 - 2

Settlement Planning

Compared with the structured settlement primary market, which was characterized by continuing sales declines in 2012, the related settlement planning market appears to have experienced growth and vitality in 2012.

The primary evidence of this growth and vitality consisted of the increasing number of educational conferences addressing settlement planning topics during 2012. These included:

• Society of Settlement Planners (SSP) Annual Meeting
• Risk Settlement Planning Practicum
• Academy of Special Needs Planners (ASNP) Annual Meeting
• Qualified Settlement Fund Symposium
• Various National Academy of Elder Law Attorney (NAELA) Conferences - of which S2KM attended the 2012 Ohio NAELA Unprogram.

One of the challenges for measuring the growth of the settlement planning market is the lack of market metrics. For example, despite continuing market inquiries, S2KM has been unable to identify reliable national market metrics for qualified settlement funds, special needs trusts, settlement trusts, or Medicare set-aside arrangements.

Towers Watson Studies

The most valuable market research for settlement planning S2KM has identified has been the Annual Studies of United States Tort Costs published by Towers Watson (formerly Towers Perrin) since 1985. These studies:

• Calculate tort costs resulting from five insured plus uninsured business lines: 1) commercial multi-peril; 2) medical malpractice; 3) product liability; 4) other liability; and 5) commercial auto.
• Exclude: 1) no-fault auto insurance; 2) property coverages; 3) workers compensation; 4) certain extraordinary (one time) costs.
• In 2002, Towers Watson also translated overall tort costs for 2001 into the following categories and percentages: 1) administrative costs (21%); 2) defense costs (14%); plaintiff attorneys (19%); economic loss (22%) and non-economic loss (24%). Towers Perrin discontinued this portion of its analysis in 2002. It was "devilishly difficult" according to Russ Sutter, a Towers Watson principal and actuary who directs their annual tort cost studies, "primarily because we lack reliable information from plaintiff attorneys". These percentages therefore represented Tower Watson's "best estimate" in 2002.

Based upon Towers Watson's most recent 2011 Annual Study and utilizing Tower Watson's 2002 "best estimate" of payout percentages, S2KM estimates, that at least since 2006, more than $160 billion of United States tort costs annually have represented payments to injury victims and their attorneys.

Settlement Planning Issues

Among many settlement planning issues, S2KM viewed the following as the most strategically important during 2012:

• The evolutionary relationship between structured settlements and settlement planning;
• Comparing these two business models;
• Improving settlement planning by expanding structured settlements;
• What we have learned about the settlement planning market;
• Settlement planning tax challenges - including stress-induced physical ailments;
• How the Affordable Care Act (ACA) impacts settlement planning;
• How states are reforming Medicaid programs to address budgetary shortfalls and the ACA;
• Whether a standard of practice exists for using Medicare set-aside arrangements in liability cases;
• The application of product suitability standards to settlement plans funded with structured settlements;
• The impact of Dodd-Frank's uniform fiduciary standard on settlement planning.

Additional post in S2KM's blog series: "Structured Settlements in 2012":

• Part 1 - Primary market

• Part 2 - Settlement planning

• Part 3 - Secondary market

• Part 4 - Executive Life of New York

State Medicaid Reform

As state governments struggle with budgetary shortfalls resulting from the economic recession and try to anticipate the financial impact of the Affordable Care Act (ACA), reforms to state Medicaid programs have become a primary focus of their efforts to achieve cost control and budgetary predictability.

In an article titled "The Impact of State Medicaid Reform on Vulnerable Populations Needing Long-Term Care Services and Supports" featured in the Fall 2012 issue of the NAELA Journal, co-authors Elizabeth P. Allen, Wendy Cappelletto, and Shana Siegel review recent legislative actions in Florida, Illinois and New Jersey related to their Medicaid programs and assess the potential impact of these changes on senior citizens and persons with disabilities.

Their analysis offers a valuable and unique state perspective of the forces now reshaping Medicaid, the single largest health care program in the United States - already covering more than 55 million individuals prior to its anticipated expansion under the ACA.

The NAELA Journal article:

• Begins with a primer on the Medicaid program.
• Highlights important Medicaid changes resulting from health care reform.
• Provides a national overview of the states’ overall budgetary and fiscal condition.
• Outlines the types of actions and reforms states have undertaken to reduce Medicaid and control growth.
• Specifically analyses legislative steps taken in Florida, Illinois, and New Jersey to control Medicaid costs as well as their potential impact.

Medicaid Primer - Selected Highlights

• Medicaid is a jointly financed partnership where the federal government provides a framework of minimum standards and states have flexibility for program design and administration.
• Each state’s Medicaid program, referred to as its “state plan,” identifies the services a state elects to provide and how the state intends to comply with federal requirements.
• States can change their Medicaid program by several methods (which must be approved by CMS) including a state plan amendment or a waiver to make a program change not otherwise allowable under federal rules.
• Federal law requires states to cover “mandatory” groups but states have flexibility to determine their own income and asset tests.
• For both mandatory groups and optional benefits, states determine the amount, duration, and scope of covered benefits,
• Senior citizens and persons with disabilities represent 25 percent of the Medicaid population but account for 66 percent of Medicaid spending.
• Low-income individuals enrolled in both Medicare and Medicaid make up 18 percent of the Medicaid population, but account for 46 percent of Medicaid spending.
• For several years before the 2008 financial crisis, Medicaid enrollment increased 4.2 percent per year.
• Between June 2008 and June 2009 Medicaid enrollment grew by 3.3 million, or 7.5 percent.

Impact of Health Care Reform (ACA) - Selected Highlights

• Beginning January 1, 2014, states must provide Medicaid coverage for individuals under age 65 with incomes up to 133 percent of the federal poverty level (FPL) without any asset test.
• Although not be entitled to standard comprehensive Medicaid benefits, states must provide at least a benchmark benefit package to the majority of this newly eligible population.
• This new enrollment will represent the largest ACA-related Medicaid cost and states with the lowest previous Medicaid eligibility enrollment will have the largest enrollment increases.
• The federal government will finance approximately 96 percent of the increase in Medicaid costs attributable to the ACA through 2020.
• All states will receive a 90 percent federal medical assistance percentage (FMAP) beginning in 2020.
• The ACA does not significantly change Medicaid’s eligibility rules or coverage methodologies for long-term care services and supports (LTCSS).
• The ACA does authorize new programs and enhances existing programs to help Medicaid recipients access community services.
• The most significant immediate source of ACA savings for states will be their reduced payments for uncompensated care for uninsured or low-income populations.
• Some estimates project aggregate savings due to reductions in uncompensated care will outweigh new state costs under the ACA.
• In addition, because newly eligible individuals will likely be healthier than traditional Medicaid enrollees, some experts expect they will not require full Medicaid benefits.

States' Fiscal Condition - Selected Highlights

• At the start of FY 2012, 42 states faced budget shortfalls.
• Legally required to balance their budgets, state options to achieve that goal include using reserves, increasing taxes, or cutting spending.
• On average, states spend about 20 percent of their general funds on Medicaid, making it the second largest item, following education, in most states’ general budgets.
• Before the 2008 economic downturn, Medicaid enrollment increased at an average annual rate of 4.2 percent.
• Between June 2008 and June 2009, however, Medicaid enrollment grew by 3.3 million, or 7.5 percent.
• The federal government provides matching dollars for state Medicaid expenditures using the FMAP based on state per capita income.
• In 2011, matching rates ranged from 50 percent (the floor amount) to 75 percent with poorer states receiving more federal assistance.

State Reforms in General - Selected Highlights

• States have used a variety of tactics trying to contain Medicaid spending: provider rate reductions, limitations on benefits, use of co-pays, increased use of waivers and managed care, and limits to Medicaid planning techniques.
• In recent years, states have increased the use of managed care to deliver and finance Medicaid services with the goals of increasing access to care, improving quality, and reducing costs.
• With managed care, states establish a network of providers or contract with health plans and/or providers who agree to accept Medicaid patients and meet certain access to care requirements.
• The share of Medicaid beneficiaries enrolled in some form of managed care reached 71.7 percent as of June 30, 2009, according to CMS.
• Many states are expanding managed care to serve persons newly eligible for Medicaid in 2014 as a result of the ACA.
• Although public demand for home and community-based services is high, overall spending for such services represents only 43 percent of Medicaid long-term care spending.
• As of 2009, the number of individuals nationally on waiting lists for home and community-based services waiver programs totaled over 365,000.

State Specific Reforms - Selected Highlights

• Florida
  • In 2010-2011, Florida's Medicaid program had over 2.9 million enrolled recipients costing $20.3 billion and representing 28 percent of the state's annual budget.
  • Florida's Medicaid enrollment increased by 42 percent during the past several years mostly as a result of the state’s economic condition.
  • Since 1996, the Florida legislature has cut $5.2 billion from its Medicaid program using rate reductions, utilization limits, fraud and abuse efforts, and other cost control initiatives.
  • As a result of the ACA, Florida is expected to gain 379,000 new Medicaid enrollees in 2014.
  • Florida also expects significant continuing growth in its population eligible for Medicaid long-term care services (those age 65 and older).
  • Attempting to close a $4.5 billion budget shortfall in 2011, Florida enacted legislation (subject to CMS approval) to replace its fee-for-service Medicaid model with a capitated managed care model.
  • Managed care advocates anticipate savings based upon studies and because HMOs:
    • Are better able to prevent, reduce, or eliminate systemic fraud and abuse; and
    • Can better address healthcare disparities due to their emphasis on primary care, member education, disease and case management, and provider collaboration.
  • Managed care opponents argue, however, that a Florida managed care pilot program initiated in 2005 did not demonstrate any cost savings.
• Illinois
  • In 2011, Illinois had more than 2.7 million individuals receiving Medicaid benefits.
  • As a result of the ACA, another 500,000 adults are expected to qualify for Medicaid in 2014.
  • In 2011, Illinois had $9 billion in unpaid bills, approximately $2 billion of which were Medicaid related.
  • The Medicaid shortfall existed despite Illinois having the tenth lowest average Medicaid cost per enrollee of any state due in part to low provider reimbursement rates.
  • In 2011, the Illinois legislature enacted Medicaid reform mandating Medicaid managed care programs.
  • Among other provisions, the 2011 legislation also authorized Illinois Medicaid authorities to gain information from various state and federal agencies for the purpose of verifying individual eligibility for Medicaid benefits.
  • In June 2012, Illinois enacted additional legislation intended to save $2.7 billion in Medicaid costs by cutting spending and eliminating certain optional services including most pooled trusts for individuals age 65 and over.
• New Jersey
  • New Jersey faces a total $10.5 billion state budget deficit in 2012 with anticipated state Medicaid spending in excess of $10 billion for its 1.3 million Medicaid beneficiaries.
  • New Jersey's Medicaid program historically has offered optional services (including dental, durable medical equipment, and vision) and has covered additional eligibility groups such as low-income parents of eligible children.
  • Medicaid coverage for long-term care, however, has been inadequate and inefficient despite spending $3.5 billion for long-term care in 2010.
  • New Jersey spends 70 percent of its Medicaid long-term care dollars on nursing home care compared to 41 percent nationally.
  • Prior to 2011, New Jersey attempted to limit its Medicaid long-term care budget primarily by restricting Medicaid planning strategies such as gift and return, caregiver agreements, promissory notes, and annuities.
  • In October 2011, New Jersey submitted a comprehensive waiver application to CMS seeking : 1) expansion of managed care to all Medicaid recipients; 2) consolidation of various Medicaid programs into one unified system; 3) greater flexibility for the scope and duration of services and co-payments; 4) expanded use of home and community-based services; and 5) an expedited process for future CMS approvals.

Authors' Conclusions

• The recession has created significant budgetary shortfalls for states resulting in a greater focus on Medicaid reform to achieve cost control and budgetary predictability.
• States are implementing various types of reforms with managed care playing a prominent role.
• Whether or not the reforms produce cost savings for states, they will likely harm the health and welfare of senior citizens and persons with disabilities.

For additional S2KM reporting about government benefits and health care reform, see the structured settlement wiki.

Health Care Law Upheld

Today, in a 5-4 decision, the Supreme Court ruled the Patient Protection and Affordable Care Act (Affordable Care Act) is constitutional including its individual mandate requiring virtually all Americans to buy health insurance. Chief Justice Roberts provided the deciding vote in the case titled National Federation of Independent Business v. Sebelius.

Rejecting the argument that Congress can use its power to regulate commerce between the states to require everyone to buy health insurance, the majority agreed instead that the penalty required if someone refuses to buy insurance is a type of tax that Congress can impose using its taxing power.

“In this case", Chief Justice Roberts opined, "it is reasonable to con­strue what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Con­gress’s power to tax.”

Surprisingly and paradoxically, the Obama Administration had defended the constitutionality of the individual mandate as a constitutional exercise of congressional power to regulate interstate commerce rather than arguing that the individual mandate was a tax. Although four Justices would have upheld the individual mandate under the Commerce Clause, their agreement does not control because Chief Justice Roberts did not agree with this interpretation.

Because the individual mandate survives, the Court did not need to decide whether other parts of the Affordable Care Act are constitutional, except for a provision that requires states to comply with new Medicaid eligibility requirements or risk losing their Federal Medicaid funding. On that issue, the Court held the provision to be constitutional so long as states would only lose new funds if they did not comply with the new Medicaid requirements, rather than all of their federal Medicaid funding.

Chief Justice Roberts stated: "Nothing in our opinion precludes Congress from offering funds under the Affordable Care Act to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding."

How will the Affordable Care Act impact settlement planning - and what resources are available for settlement planners to better understand the 2,700-page health-care law?

To date, there has been a glaring lack of educational inquiry at national structured settlement and settlement planning conferences about how the Affordable Care Act impacts their customers, their products and their traditional business models. Arguably the justification for this educational omission has been the constitutional uncertainty which no longer exists.

Fortunately for settlement planners, neither Academy of Special Needs Planners (ASNP) nor the National Academy of Elder Law Attorneys (NAELA) has been similarly paralyzed educationally and/or intellectually 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. Also in 2011, the NAELA Journal devoted its Spring issue to the Affordable Care Act. S2KM summarized Barrett's analysis and listed the NAELA Journal articles in a prior blog post titled "Health Care Reform".

At the ASNP 2012 Annual Meeting, David Lillesand discussed how the prohibition against "pre-existing condition" exclusions mandated by the Affordable Care Act (already in effect in 22 states) impact special needs legal practice generally and self-settled (first party) special needs trusts specifically.

In summary, based upon his experience in Florida, where the Affordable Care Act (ACA) 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.

Although the Affordable Care Act is controversial and complex, the necessary Federal and State administrative rules to implement the new health care law promise to be even more so. For a helpful and definitive resource, see "Health Care Rule Making Guide" edited by Professor James T. O'Reilly.

For additional information about settlement planning and government benefits, see the structured settlement wiki.

SNTs and Structured Settlements

With declining annuity premium and historically low interest rates, structured settlement stakeholders should be discussing how to improve and grow their business. By substantially expanding Medicaid, Federal health care reform potentially increases the market for structured settlement annuities used to fund special needs trusts (SNTs).

Congress created special needs trusts (self-settled; pooled; and third party) as part of the Omnibus Budget Reconciliation Act of 1993. When properly designed and administered, special needs trusts can receive settlement proceeds, including structured settlement payments, without disqualifying the trust beneficiary from SSI or Medicaid.

Whether a special needs trust is advisable in a specific case requires analysis of many factors including the extent of disability, the availability of government benefits, as well as the nature and amount of available personal and family assets. One complicating factor is shared regulatory authority. Medicaid is a joint federal state program. In addition to two federal agencies (SSA and CMS), state Medicaid agencies and state Medicaid plans also provide state-specific rules for special needs trusts. State and county Medicaid case workers interpret and apply federal and state Medicaid laws to individual cases.

The growth of special needs trusts has coincided with a corresponding increase in the number of special needs attorneys. Three national professional associations (ASNP, SNA and NAELA) now exist for special needs attorneys and several legal textbooks have been written about special needs trusts. Most of these textbooks, however, are generic and do not provide detailed state-specific analysis. One exception is a two volume treatise published in 2008 (with updates) by the California CEB titled "Special Needs Trusts: Planning, Drafting and Administration" (CEB SNT). Edited by Kevin Urbatsch, CEB SNT features 17 chapters separately written by leading California special needs attorneys plus detailed appendices with applicable legal forms plus federal and state statutes, regulations, case citations and other references.

Because California represents a large and strategically important state for both structured settlements and special needs trusts, S2KM recently reviewed CEB SNT to evaluate how this legal treatise addresses structured settlements and what opportunities it suggests for improving and growing the national structured settlement market. Most of the structured settlement discussion in CEB SNT appears under a Chapter 8 section titled "Use of Structured Settlements with First Party SNTs" authored by Donna Bradshaw and Leslie Ann Barnett.

Settlement Planning Team

For personal injury cases involving a special needs trust, Bradshaw and Barnett propose a collaborative settlement planning team consisting of a special needs attorney, a structured settlement broker, a SNT trustee, an independent financial planner and a life care planner. Neither Bradshaw and Barnett, nor other CEB SNT authors discuss this proposed planning team in detail. Arguably, such a discussion goes beyond the scope of this CEB SNT treatise.

The concept of a collaborative professional team, however, is critical for settlement planning and the future of structured settlements. Unfortunately, with only a few exceptions (most notably the ASNP 2009 and the SSP 2011 Annual Conferences both of which featured CEB SNT editor Kevin Urbatsch as a speaker), the following issues have to date received insufficient industry discussion:

• What is a settlement plan?
• Who are the necessary team members and what issues should they address?
• What is the settlement planning role, if any, for the plaintiff trial attorney? for the defense structured settlement broker?
• What work product(s) do each of the team members contribute?
• How are the various work products consolidated and by whom?
• How are conflicting recommendations reconciled and by whom?
• What does a settlement plan cost?
• How are the team members compensated and by whom?
• What disclosures should be made to the injury victim?
• What metrics are needed to evaluate the effectiveness of a settlement plan?
• How important are 468B qualified settlement funds for settlement planning?
• Who is liable, and how are damages apportioned, for settlement planning errors and omissions?

Structured Settlements

In the two volume CEB SNT treatise, structured settlements are the only SNT "funding product" that receives detailed coverage. Chapter 8 authors Bradshaw and Barnett justify devoting 12 CEB SNT subsections to "structured settlements" by stating: "special needs planners need to understand how structured settlements work with first party SNTs to best advise personal injury attorneys, persons with disabilities, and their families."

Acknowledging the need to understand how structured settlements work, however, does not mean Bradshaw and Barnett fully endorse structured settlements. To the contrary, they provide several warnings and cautionary notes:

• "Plaintiff's trial attorney may mistakenly believe (or be misled into believing) that a structured settlement annuity is the only effective tool for the major part of the settlement funds."
• "At times a structured settlement is funded for a person with a disability without consideration of the unique needs to that individual."
• "The most common issue is too much cash in the structured settlement and not enough cash outside the structure."
• "It is insufficient to retain just enough cash to purchase a home and a van; there also must be a financial plan to maintain the home and van and consider replacement costs"
• "When a settlement has been funded primarily in a structured settlement annuity, there is little protection from inflation."
• "Annuities purchased in a time of low interest rates are likely to grossly under perform when compared to a well-balanced portfolio of stocks and bonds."
• "If the SNT beneficiary has an emergency or needs cash quickly, the settlement annuity will not advance payments."
• "It is imperative that practitioners insist on a commutation rider whenever there is a possible estate tax situation."
• "Once the structure is funded, [the structured settlement broker's] job is done. It is then left to the SNT trustee and special needs practitioner to work with the structured settlement for the rest of the person with the disability's life."

Without explicitly criticizing structured settlement business standards and practices, these warnings and cautionary notes highlight structured settlement issues S2KM discussed in a recent blog series about "product suitability standards" including the need for full disclosure and informed consent.

Despite 12 CEB SNT subsections discussing structured settlements, Bradshaw and Barnett barely mention three structured settlement-related topics that are important for special needs attorneys:

• Periodic Payment of Judgments - California was the first state to make periodic payment mandatory in certain (medical malpractice) judgments "at the request of either party". Because California's medical malpractice periodic payment statute also influences settlements that include special needs trusts, California special needs attorneys should be familiar with its provisions.
• Structured Settlement Transfers - Structured settlement transfers represent a strategy option for SNT trustees and special needs attorneys to consider if and when they confront some of the potential structured settlement problems Bradshaw and Barnett identify above. California amended its state structured settlement protection statute in 2010 adding factors for the court to consider when determining whether a proposed transfer is fair, reasonable and in the payee's best interest.
• Qualified Settlement Funds (QFS) - Similar to structured settlement transfers, QSFs are controversial within the structured settlement industry. Arguably underused in single event cases, QSFs provide a valuable settlement planning tool that all special needs attorneys should understand and promote.

Conclusion

For a regressive structured settlement industry, first party special needs trusts represent a growing market segment and special needs attorneys provide expanding networks of potential professional allies. Although CEB SNT focuses on California special needs trusts, the subsections discussing structured settlements offer a useful learning resource for all structured settlement stakeholders. Bottom line: the structured settlement industry needs to expand its strategic dialogue with special needs attorneys. The objectives should include better marketing and product feedback plus improved educational programs, business models and business practices.

For additional information about special needs trusts and structured settlements, see the structured settlement wiki and Section 15.04[7] of "Structured Settlements and Periodic Payment Judgments" (S2P2J).

Structured Settlements and Settlement Planning

The purpose of this blog post is to compare structured settlements and personal injury settlement planning. As noted in an earlier S2KM blog post, the transition from structured settlements to settlement planning is one of three fundamental transitions reshaping the structured settlement industry. The other two fundamental transitions:

• From a singular, illiquid, and non-assignable product to multiple products with greater flexibility to address changing needs and circumstances of injury victims;
• From traditional (pre-Internet) to web-based business models, processes and skill sets.

Among statutory definitions, "structured settlement" is defined in IRC 5891 (c)(1) and Section 2(m) of the Model State Structured Settlement Protection Act. Wikipedia offers an additional definition for "structured settlement". Financing diagrams provide a visual perspective for understanding traditional structured settlement financing alternatives and methodologies.

As summarized in this history diagram, structured settlements and the structured settlement industry have experienced significant changes since structured settlements were first utilized in the United States during the late 1970s including:

• The secondary market;
• 468B qualified settlement funds;
• Integration with Medicare and Medicaid; and
• Integration with settlement trusts.

This transaction diagram demonstrates how, as an integrated product, structured settlements have become increasingly complex legally and financially with multiple stakeholders and documents.

One result of this increased integration and complexity has been the evolution of structured settlements from a stand alone product into a core product for a more comprehensive profession called "settlement planning" - which some participants refer to alternatively as "settlement consulting" or "special needs settlement planning".

Although no statutory or standard definitions exist for settlement planning, leading practitioners and advocates, including Jack Meligan and Joseph DiGangi, have offered their own definitions and explanations. In addition, the Society of Settlement Planners (SSP) has adopted the "Standards of Professional Conduct for Settlement Planners" and offers a Registered Settlement Planner  (RSP) certification program.

Here is how Meligan, SSP's President, explains settlement planning:

• "Settlement Planning is the modern day [holistic] approach to assisting personal injury (and other types of) claimants with the personal, and highly unique, financial planning decisions surrounding the settlement of their claim.
• "Settlement Planning starts from the premise that structured settlements are not the answer to everything that everyone needs or wants to do with their settlement dollars.
• "Using that as a starting point, the first in a long line of questions for any personal injury claimant to answer is: 'What do you want this settlement to accomplish for you? What is the most important thing? Then, what is the, second most important, third most important, etc'.
• "Only after you, as the claimant, answer the question above should you really begin to craft a plan to help you reach those goals."

DiGangi spoke about "settlement consulting" at the 2009 Winter Meeting of the National Structured Settlement Trade Association (NSSTA).

• In what he termed "a wake up call for the industry", DiGangi criticized the traditional structured settlement business model and knowledge standards.
• He also outlined his vision for industry transition, improvement and growth which he termed "comprehensive settlement consulting".

DiGangi characterized the current structured settlement industry as "a stagnant market" based upon an outdated "annuity broker" business model. Structured settlement clients and competitors, according to DiGangi, share negative perceptions about structured settlement consultants. As examples of negative perceptions, DiGangi cited the industry's single product offering and limited knowledge base.

As an alternative to the "annuity broker" structured settlement business model, DiGangi proposed a "consultant" model with multiple products and services providing added value for, and with, other settlement stakeholders.

Characteristics of DiGangi's settlement consulting model:

• Planning orientation;
• Solutions before products;
• Blended products and services;
• Product neutrality;
• Compensation disclosure;
• Professional training and designations;
• Comprehensive skill sets and knowledge base.

During his 2009 NSSTA presentation, DiGangi also highlighted several transitional issues: licensing; conflicts of interest; collaboration models; and work process infrastructure.

S2KM will summarize and evaluate how SSP and NSSTA addressed "settlement planning" during their 2011 Annual Meeting educational conferences in a subsequent and related blog post.

Timothy Morbach of The Settlement Services Group (TSSG) developed the linked diagrams in this blog post. TSSG is an affiliate and strategic partner of S2KM Limited. Viewers can enlarge the diagrams to improve their visibility.

SSP and NSSTA 2011 Annual Meetings - 1

This blog post begins S2KM's reporting and outlines results from the 2011 annual meetings of the Society of Settlement Planners (SSP - May 15-17) and the National Structured Settlement Trade Association (NSSTA - May 18-20).

Elections

• NSSTA
  • President - Dan Finn
  • New Directors - Tom Donahue; Christine Logan; Kevin Silo; Mike Wostoupal
• SSP
  • President - Jack Meligan
  • New Directors - Tony Alfieri; Tim Denehy; Charles Schell; Michelle Whitmore.

Honors - NSSTA

• President's Award - Betty Gregware
• Leadership Award - Toni Warbington
• CSSC Designation Certificates
• NSSTA Past Presidents - honoring NSSTA's 25th Anniversary

Educational Programs - speakers by topic with recommended related resources from "Structured Settlements and Periodic Payment Judgments" (S2P2J), S2KM wikis and prior S2KM blog posts.

Legislative Update

• NSSTA - Eric Vaughn: Washington Update
  
• SSP - Roy Franco: HR 1063
  

Government Benefits

• NSSTA
  • MSA Panel -Toni Warbington; Doug Brand; David Korch; David Hayes
  • Special Needs Trusts - Jay Sangerman
• SSP
  • Liability MSAs - Jason Lazarus; Roy Franco; Mark Pololizio; Doug Shaw
  • Liens Panel - Roy Franco; Tevra Johnson
• Recommended resources
  • S2P2J Chapter 15 - "Government Benefits and Structured Settlements"
  • S2 wiki - "Government Benefits"

Taxation

• NSSTA: 468B QSF Funds - Martin Jacobson
• SSP
  • 468B QSF Funds - Robert Wood
  • Taxation of Damages - Robert Wood
  • Medical Expense and Estate Tax Issues - Jeremy Babener
• Recommended resources
  • S2P2J Chapter 2 - "Taxation of Damages"
  • S2P2J Section 3.08B - "Section 468B Settlement Funds"
  • S2 public policy wiki pages featuring: Robert Wood and Jeremy Babener

Stakeholder Perspectives

• NSSTA
  • Attorneys - William Robinson lll, President-Elect of the American Bar Association
  • Legal Committee Update (including secondary market) - Peter Vodola; Amy Ravitz; Kathy Scanlon
  • Financial Planners - Laura Tarbox
  • Judges - Peter Vodola, Edward Burke, Stephen Denton
  • Unions - Michael Rott
• SSP
  • Special Needs Attorneys - Kevin Urbatsch; Michele Fuller
  • Plaintiff Attorneys - Jay Fisher
• Recommended resources
  • S2P2J Chapter 4 - "Defense Counsel"
  • S2P2J Chapter 5 - "Plaintiff Counsel"
  • S2P2J Chapter 6 - "Case Preparation"
  • S2P2J Section 16.05 - "Judicial Review of Transfer Applications"
  • S2 wiki - "Secondary Market"
  • S2KM blog - "Ceron v. Henderson"

Marketing

• NSSTA: Business Communications - LuAnn Reeb
• SSP
  • Marketing to Personal Injury Attorneys - Joe Didier
  • Electronic Media and Social Networking - Mark Wahlstrom
• Recommended resources
  • S2 wiki - "S2 and KM"
  • Web 2.0 for Lawyers wiki

Practice Improvement and New Products

• NSSTA: CSSC Continuing Education Online - Karen Meyers; Kathy Moghadas
• SSP
  • Dissecting a Settlement Plan - Jack Meligan; Joseph Tombs
  • Non-qualified Assignments - Brian Michael
  • Indexed Annuities - Rick Miller
  • Re-cycling Structured Settlement Payment Rights - Anthony Prieto; Tim Denehy
• Recommended resources
  • S2P2J Section 3.06A - "Non-Qualified Assignments"
  • S2 wiki - "Re-thinking Structured Settlements"
  • S2 wiki - "Settlement Consulting"
  • S2 wiki - "Business Standards and Practices"
  • S2 wiki - "Spencer v. Hartford"
  • S2KM blog - "Online S2P2J" 

Strength of Life Companies

• NSSTA
  • Strength of Life Insurance Companies - Jim Morris, Chairman, President and CEO of Pacific Life Insurance Company
  • State Guarantee Associations - Tom Ronce; Craig Ulman
  • ELNY Update - Len Blonder; Randy Dyer; Dan Finn; Craig Ulman

• Recommended resources
  • S2P2J Section 3.05[9] - "Life Insurance Guaranty Associations"
  • S2P2J Section 3.05[10] - "Executive Life Insolvency"
  • S2KM blog - "Executive Life of New York"

For S2KM reporting and analysis of prior SSP and NSSTA meetings, see S2KM's structured settlement wiki.

S2P2J Release 49

Publisher American Lawyer Media (ALM) has announced May 1, 2011 as the distribution date for Release 49 of "Structured Settlements and Periodic Payment Judgments" (S2P2J). First published in 1986, S2P2J is co-authored and updated semi-annually by Daniel W. Hindert, Joseph J. Dehner and Patrick J. Hindert. Both the National Structured Settlement Trade Association (NSSTA) and the Society of Settlement Planners (SSP) utilize S2P2J as an educational resource for their certification programs.

S2P2J Release 49 Highlights

• Expanded guidance on Medicare reimbursement procedures including:
  • A new section on how the Medicare Secondary Payer rules affect plaintiffs, defendants, plaintiffs’ attorneys and insurers; and
  • How each such case participant can comply with increasing government efforts to recoup prior payments from settlements.
• How allocations in settlement agreements affect a claimant's tax treatment.
• Structured settlement tax decisions in recent cases including:
  • No-fault;
  • Emotional distress; and
  • Wrongful incarceration.
• How the Gramm-Leach-Bliley Act privacy rules impact the structured settlement process.
• Discoverability of claimant Social Security numbers
• Impact of structured settlement tax and timing issues on potential legal liability for;
  • Defense and plaintiff attorneys; and
  • Structured settlement consultants.
• How inadequate beneficiary designations create subsequent legal disputes.
• Whether an arbitration award can be converted to a periodic payment judgment.
• Qualifying annuitists as expert witnesses.
• Impact of anti-assignment provisions in:
  • Workers compensation cases; and
  • U.S. government as defendant cases.
• Recent secondary market judicial decisions:
  • Rejecting transfers of structured settlement payment rights for failure to meet the "best interest" test; and
  • Approving the sale of payment rights in a payee’s bankruptcy.
• How structured settlement payment rights are treated in bankruptcy, child support, marital asset and minor cases.
• New structured settlement and periodic payment developments in Ireland, Canada, New Zealand and the United Kingdom.

For highlights from past releases of "Structured Settlements and Periodic Payment Judgments", see S2KM's structured settlement wiki.

Health Care Reform

Health care reform consists of two laws enacted in March of 2010 (the Patient Protection and Affordable Care Act and the Health Care Education and Reconciliation Act of 2010) which will have a profound impact on people with disabilities.

While the Academy of Special Needs Planners (ASNP) and the National Academy of Elder Law Attorneys (NAELA) are providing their members with detailed analyses of health care reform, the structured settlement industry has not yet addressed this historic legislation in their educational programs.

Among the featured speakers at the ASNP 2011 Annual Meeting, Cynthia Barrett discussed how health care reform impacts people with disabilities. Barrett's presentation, accompanied by a detailed written analysis, summarized the new Federal health care legislation and advised ASNP attendees how to adjust their professional practice.

Of special interest to structured settlement and settlement planning professionals, Barrett highlighted and discussed the following questions plaintiff attorneys are most likely to ask about health care reform:

• Will my disabled client be able to get health insurance now?
• For settlement purposes, can future medicals be reduced to estimated lifetime insurance premiums until my client becomes eligible for Medicare or Medicaid?
• Do private health plans have “set-aside” or special needs trust requirements?
• If my client can get private health coverage, will he/she still need public benefits?
• If my client can obtain private health insurance, why do I need a special needs attorney or a special needs trust?
• As a plaintiff attorney, is there anything else I need to know about health care reform or related legislation?

In response to the last question, Barrett identified:

• The Medical Tort Claims Alternatives Demonstration Program which will send $50,000,000 in demonstration grant funds to states (up to $500,000 per state) over five years to develop and implement alternatives to the existing civil litigation system. According to Barrett, these demonstration grants:
  • Focus narrowly on disputes over injuries caused by health care providers or health care organizations;
  • Are intended to showcase medical malpractice alternatives;
  • Will be awarded by the Secretary of Health and Human Services; and
  • Plaintiffs may elect whether to participate, but cannot be required to participate.
• President Obama’s 2011 State of the Union address during which the President suggested he might cooperate with Republicans on medical malpractice tort reform.

Barrett also advised special needs attorneys to:

• Exclude from their services health coverage options advice;
• Screen claimants to determine whether needs-based Medicaid will be important.

NAELA will be devoting the entire Spring 2011 edition of the NAELA Journal to health care reform. Available to NAELA members only, this NAELA health care reform analysis will feature a detailed introduction by NAELA Journal Editor-in-Chief William J. Brisk plus eight articles and a supplement of online resources.

Brisk's introduction addresses why health care reform is "too significant to ignore" and highlights its most important features. His analysis identifies what tort reform actually does and does not accomplish. He emphasizes the important roles Medicare, Medicaid, private health insurance companies and health maintenance organizations will play in implementing health care reform.

Additional NAELA Journal topics and authors:

• Health Care Changes: Challenges to Medicare - Vicki Gottlich, Patricia Nemore, and Alfred J. Chiplin Jr.;
• The New CLASS Act - Morris Klein;
• Nursing Home Regulations - Charles Perez Golbert;
• Health Care Reform’s Impact on Small Businesses and Individuals - Ben A. Neiburger;
• Health Care Reform and End-of-Life Issues - Fay Blix;
• The Affordable Care Act’s Changes to Medicaid’s Coverage for Long-Term Services and Supports - Gene Coffey;
• Health Insurance Reforms: Once In a Lifetime Change or Same as It Ever Was? - Lucinda E. Jesson;
• Medicaid Expansion Under the 2010 Health Care Reform Legislation: The Continuing Evolution of Medicaid’s Central Role in American Health Care - Renée M. Landers and Patrick A. Leeman;
• Online Resources Available to Supplement Health Care Reform Discussion - prepared by Claire DeMarco.

If health care reform is "too significant to ignore" and if health care reform greatly impacts disabled people, why has the structured settlement industry ignored health care reform? Possible reasons:

• Product focus instead of customer focus;
• Circumscribed scope of knowledge;
• Limited strategic thinking or analysis;
• Retrospective and inside-the-box orientation;
• Protect and preserve mentality.

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.