The Academy of Special Needs Planners (ASNP) hosted its Third Annual Meeting March 6-7, 2009 at the Rancho Bernardo Inn in San Diego, California. Titled "Special Needs Planning in an Era of Change", the program devoted one day of educational discussions to "special needs settlement planning" (SNSP) which ASNP characterized as a "new opportunity" for special needs attorneys.
The ASNP speakers included leading special needs attorneys and plaintiff structured settlement consultants who provided detailed analyses of the following SNSP topics:
- Anatomy of a SNSP Case - Frank Johns, Kevin Urbatsch and Patrick Hindert;
- Structured Settlement Annuities in SNSP Practice - Jack Meligan and Michele Whitmore;
- IRC 468B Qualified Settlement Funds (QSFs) - Jason Lazarus and Richard Risk;
- Integrating SNSP with an Elder Law Practice - Tim Nay and Sandy Conley;
- Medicare Secondary Payer Compliance - Mark Popolizio;
- Lien Resolution Strategies - William Browning, Mark Popolizio and Sylvius von Saucken;
- Marketing to the Trial Bar - Frank Johns, Jason Lazarus, and Kevin Urbatsch.
The SNSP program highlighted three basic issues:
- What is SNSP?
- What changes are impacting SNSP?
- What new opportunities does SNSP create for special needs attorneys?
What is SNSP?
Surprisingly, none of the speakers attempted to specifically define SNSP. Hindert recommended web 2.0 knowledge maps, wikis and folksonomies as a strategy for defining and growing SNSP.
Meligan and Whitmore described the related topic of "settlement planning" as both a profession and a process. According to Meligan and Whitmore: "Settlement planning is a profession that helps recipients of settlement proceeds use their proceeds to achieve their post-loss goals and transition successfully into their post-settlement financial lives". Meligan and Whitmore recommended utilizing settlement planning professionals with: credentials; loyalty to plaintiffs; planning approach; and experience. Meligan and Whitmore also described "settlement planning" as part of a three-part process preceded by litigation and followed by financial planning.
von Saucken also described "settlement planning" as a process or "continuum" subject to changing rules that require adjustments in settlement planning prototypes. von Saucken presented a settlement planning timeline:
- Agreement on settlement amount;
- Lien reimbursement;
- Medicare/Medicaid preservation trust;
- Structured settlement paperwork;
By comparison, during his recent presentation at the NSSTA 2009 Winter Meeting, Joseph DiGangi defined "settlement consulting" as a four-stage process:
Most of the ASNP presenters identified and addressed "structured settlements" as an essential component of SNSP. As part of his 468B QSF comments, Risk reviewed several structured settlement definitions including the tax definition in IRC section 5891(c)(1). To S2KM's knowledge, Risk thereby becomes the first structured settlement primary market participant to review the IRC section 5891 tax definition for "structured settlement" during a national conference. By comparison, not a single NSSTA or SSP conference speaker has reviewed the IRC Section 5891 definition for "structured settlement" since IRC 5891 was enacted in 2001. Risk also becomes, to S2KM's knowledge, the first conference speaker to link IRC 468B and 5891 which S2KM views as a strategic SNSP construct.
Several ASNP speakers addressed various types of settlement trusts in the context of SNSP. Browning highlighted settlement trust "due diligence" as an increasingly important SNSP issue. Three settlement trust providers, but not one structured settlement annuity provider, exhibited at the SNSP conference.
What changes are impacting SNSP?
ASNP speakers identified and highlighted the following changes impacting SNSP:
- Deficit Reduction Act of 2005 (DRA);
- The Ahlborn Case;
- 468B qualified settlement funds (QSFs);
- Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA);
- Recent MSA rules promulgated by CMS;
- The structured settlement secondary market;
- State structured settlement protection statutes;
- Transition of knowledge and knowledge work to the Internet.
Additional changes referenced by ASNP speakers which deserve more detailed analysis in future SNSP discussions:
- Transitional SNSP business models:
- How the claim management SNSP model differs from the 468B QSF SNSP model; and
- How to develop multi-professional SNSP teams and knowledge networks.
- How the current financial crisis impacts SNSP;
- Proposed and/or needed SNSP legislative and regulatory changes.
What new opportunities does SNSP create for special needs attorneys?
Traditional special needs legal practice and education have focused on special needs trusts, estate planning, government benefits and probate. As the ASNP conference demonstrated, SNSP encompasses traditional special needs expertise, but also new fields of related legal practice.
Four leading SNSP legal treatises (listed alphabetically by title) define these new fields of SNSP legal practice:
- "Negotiating and Settling Tort Cases" - by Matt Garretson and Guy O. Kornblum;
- "Qualified Settlement Funds and Section 468B" - by Robert W. Wood;
- "Structured Settlements and Periodic Payment Judgments" - by Daniel W. Hindert, Joseph J. Dehner and Patrick J. Hindert;
- "Taxation of Damage Awards and Settlement Payments" - by Robert W. Wood.
The ASNP presentation by speakers Johns, Lazarus and Urbatsch titled "Marketing to the Trial Bar" offered valuable advice for special needs attorneys as well as other SNSP stakeholders. S2KM's structured settlement transaction diagram, developed in 2005 with graphic artist Keith Burtoft, may help special needs attorneys identify other potential SNSP clients and roles. In addition, as S2KM's blog post "Structured Settlement Surveys" demonstrates, further market research would be useful to define and grow the SNSP market.
Congratulations to ASAP and SNSP program Chairperson Tim Nay for the timely and educational SNSP program. Prior S2KM blog posts about ASNP:
For additional information about settlement consulting, see S2KM's four-part blog series "Settlement Consulting".