The Society of Settlement Planners (SSP), hosted its 2007 Fall Meeting September 8 at the Camelback Inn in Scottsdale AZ. SSP is a national nonprofit educational and public policy association of professional structured settlement producers and other professionals who assist injured claimants in the settlement process.
During the past three years, SSP has offered outstanding
structured settlement and settlement planning educational programs. Earlier this year, SSP
announced the creation of a new Registered Settlement Planner (RSP) professional designation. The first RSP program is scheduled to begin today in affiliation with Texas Tech University.
For summaries of prior SSP educational programs, see these earlier S2KM blog posts:
Highlights of SSP's 2007 Fall meeting included educational presentations by SSP members for the following topics:
- Medicaid Liens - At SSP's 2007 Annual Meeting, Matt Garretson summarized his paper titled "What does the Ahlborn Case Really Mean?"
In Ahlborn, the U.S. Supreme Court unanimously affirmed the Eighth
Circuit's decision limiting a state Medicaid agency to reimbursement
from only that portion of a judgment or settlement that represents
payment for medical expenses. At SSP's Fall 2007 Meeting, attorney Greg Maxwell
continued SSP's analysis of Medicaid liens. Maxwell discussed
preliminary responses by state Medicaid agencies to Ahlborn and
identified lien resolution services as an increasingly important settlement planning service and skill set. For additional information about Medicaid
lien resolution, see section 15.04[4] of "Structured Settlements and Periodic Payment Judgments" as well as Matt Garretson's new book "Negotiating and Settling Tort Cases".
- Personal Injury Tax Planning - Jesus Longoria,
a Texas-based financial planner, discussed several settlement planning
tax issues including punitive damages; confidentiality agreements;
alternative minimum tax; and commutation riders. Longoria's
presentation also featured a product developed by Amicus Financial Advisors
that calculates projected taxes on various settlement options.
Longoria's presentation did not detail two important settlement
planning tax issues addressed by attorney Robert W. Wood in recent S2KM blog posts and podcasts - IRC section 468B funds and structured attorney fees. Wood also authors "Taxation of Damage Awards and Settlement Payments", a definitive hardcopy textbook that encompasses personal injury tax planning.
- Dissipation Risk - Professor Joe Tombs
of Texas Tech University delivered an entertaining presentation about dissipation risk
titled "The Elephant in the Room". Tombs' conclusions: 1) Financial
planners generally ignore dissipation risk; 2) Dissipation risk defines
settlement planning; and 3) Settlement planners must teach personal injury claimants how to manage their impulses. Tombs also introduced a new Amicus product that he has titled the "Tombs' Dissipation Index" (TDI).
According to Professor Tombs', the TDI measures (on a scale of 1 to 100) the
relative propensity of individual settlement
recipients for dissipation risk. The most important indicators: education and physical
fitness. Had time permitted, it would have been interesting to hear Professor Tombs address these additional dissipation-related topics:
- How inadequate settlement amounts (compared with projected
injury-related expenses) and unexpected (and unplanned for) future events impact settlement planning and dissipation
analysis?
- What impact, if any, pre-litigation funding and post-settlement
funding (factoring) have on settlement planning and dissipation
analysis?
- How factoring, from a dissipation perspective, impacts a settlement planner's financial and insurance product recommendations?
- Annuities and Managed Money - Paul Lesti, author of a structured settlement treatise, repeated a presentation he originally delivered at the AAJ 2006 Winter Meeting as part of a debate with Rich Halpern.
One of the results of Lesti's debate with Halpern was the distribution
by Halpern of widely-discussed (within the structured settlement
industry) opinion letters by
two law professors, Stephen Saltzburg and Edwin Chemerinsky. These
opinion letters highlight the obligations of plaintiff attorneys,
under the ABA's Model Rules for Professional Conduct,
to understand and inform their clients about proposed structured
settlement compensation arrangements and to secure their client's "informed consent" for any such compensation arrangement. Although Lesti's presentation provided a persuasive summary of the advantages of structured settlement annuities, Lesti did not:
- Address the settlement planning issues raised by Professors Saltzburg and Chemerinsky;
- Define "managed money" for purposes of settlement planning;
- Discuss the role and interaction of settlement trusts (managed money) and annuities in preserving government benefits.
- Settlement Planning - Jack Meligan summarized examples of Settlement Professional Inc's (SPI) settlement plans and settlement planning
strategies. SPI's settlement planning approach
focuses on empowering personal injury victims to control and direct
their own settlement planning. For future SSP educational programs,
Meligan should be encouraged to expand his excellent
presentation to address the following
issues:
- What is settlement planning and how does it differ, from a product and knowledge perspective, from:
- Structured settlements?
- Special needs planning?
- How do settlement planners identify and collaborate with settlement trust providers?
- How does factoring (and the secondary insurance markets generally) impact settlement planning?
- Annuity Testimony - Jack
Meligan and Paul Lesti teamed up to provide a valuable and enlightened
analysis of annuity testimony. When offered as proof of present value
in personal injury litigation, annuity testimony generally is provided
by defendants as a trial strategy for limiting economic damages. Chapter 12
of "Structured Settlements and Periodic Payment Judgments" provides a
traditional, defense-oriented analysis of annuity testimony. In their
presentation, Meligan and Lesti looked at annuity testimony from the
perspective of settlement planners working with plaintiff attorneys to challenge and defeat annuity testimony by defendants.
Their analysis included trial tactics as well as how to use annuity
testimony expertise as a marketing advantage.
- Medical Imagery - What does
medical imagery have to do with settlement planning? Quite a bit - if
you listen to the representatives of Bio-Sim Corporation, who made a brief
presentation at the SSP meeting. Bio-Sim, whose work is featured on the
television show, Grey's Anatomy, believes their work product can
substantially reduce settlement time - and improve settlement results
for plaintiffs. Bio-Sim also offers referral fees to
settlement planners. Which raises this question: if you are a
settlement planner focused on marketing to plaintiff attorneys, what
products and services should you be offering?
For an association that purports to be a protector of claimants rights, it was surprising SSP did not address the following important settlement planning issues as part of its Fall 2007 Meeting:
- Executive Life of New York - NSSTA has created a Task Force. SSP should at least provide its members with a status report.
- 2007 POMS - how are SSP and NSSTA tracking this issue? - specifically what new POMS
sections are being proposed for annuities, structured settlements, assignment
rights and special needs trusts?
- State Medicaid responses (and related judicial responses) to the Deficit Reduction Act of 2005 - Sylvius von Saucken introduced this issue to SSP members at SSP's 2007 Annual Meeting and to NSSTA members at the NSSTA 2007 Annual Meeting.
- Transparency and informed consent for all settlement planning compensation. SSP should continue its leadership with these issues.
- Single Claimant 468B Funds - What is the strategy to secure clarification by the U.S. Treasury confirming single claimant 468B funds?
- Rebating
- Which statutes define rebating?
- Which rebating practices (plaintiff and defendant), are:
- Legal vs. illegal; and
- Represent good vs. unacceptable business practices?
- Macomber case - Having featured this case at its 2006 Annual Meeting, SSP should provide an update for its members about the Macomber settlement.
- State structured settlement protection statutes -
NSSTA provides educational presentations about these statutes for its members. Why not SSP?
In addition to SSP's educational presentations in Scottsdale, SSP's
President Anthony Alfieri chaired a discussion about SSP's
organizational and promotional issues. Here are some related and
unsollicited S2KM recommendations for SSP:
- Continue to identify and recruit structured settlement and settlement planning industry leaders who share SSP's values and priorities - even if they compete with you and challenge your viewpoints on important issues.
- Establish communication with other settlement planning associations - including NSSTA; NAELA; NAMSAP; NASP; ASNP; and SNA. Focus on shared issues and
collaboration opportunities. Attend the Stetson Law School SNT seminar.
- Use a wiki to publish online (publicly or privately) the current draft of SSP's Code of Ethics. Sollicit and review comments and improvements.
- Learn web 2.0 (aka social network) technologies to improve SSP's online identity as well as SSP's communication, learning and operating efficiencies.
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