Beyond Structured Settlements

Understanding Structured Settlements

(Re)learning resources about structured settlement from S2KM Limited :

• Post 9/11 Structured Settlements - understanding the New Basics for Stage 3 structured settlements.
• "Structured Settlements and Periodic Payment Judgments"
  • Introducing the authors and publisher;
  • Announcing Release 38;
  • Featuring updated Chapter 5: "Role and Responsibilities of Plaintiff Counsel in Structured Settlements".
• How the Internet impacts structured settlements including
  • Knowledge Management - with thanks to Denham Grey and Eric Tsui.
  • Social Network Technologies
  • Podcasting - with thanks to Mark Wahlstrom and Ed Vogt.
  • Concept Maps (Example: Podcasting) - with thanks to Barbara Bowen.
  • Standards
• IRC Section 5891 - How the Victims of Terrorism Tax Relief Act impacts structured settlements 
  
  • Provides the Internal Revenue Code definition for structured settlement;
  • Authorizes state processes for completing structured settlement transfers;
  • Clarifies tax treatment of structured settlement transfers.
• Medicare Set-aside Arrangements - how the Medicare Secondary Payer rules are changing structured settlements and personal injury settlement planning.
• Compensation Disclosure - How the NAIC Model Compensation Disclosure requirements impact structured settlements.
• Settlement Trusts - How to select a trustee
• IRC 468B Funds - The single claimant issue
• Plaintiff Attorney Compensation - The American Jobs Creation Act of 2004
• Structured Settlement Trade Associations
  • National Structured Settlement Trade Association (NSSTA);
  • National Alliance of Medicare Set-aside Professionals (NAMSAP);
  • Society of Settlement Planners (SSP); 

Social Network Technologies

Denham Grey, a leading Knowledge Management (KM) thinker and practioner, takes on the KM lions in their own den when he moderates an online presentation this week for the "Star Series" sponsored by the Association of Knowledgework (AOK).

Entitled "Knowledge Sharing and Social Software", Denham's presentation includes a valuable and related wiki.  Among other resources, the wiki features a concept map of podcasting created by Barbara Bowen for S2KM Limited.

For additional background information about social network technologies, see Denham Grey's weblog, "Knowledge-at-work" as well as the following wikipedia entries:

• Community of practice

• Concept map

• Knowledge management

• Podcasting

• RSS

• Social bookmarking

• Social network

• Weblog

• Wiki

Plus additional information about:

• Podcasting
• Knowledge management and structured settlements.
• Membership in AOK.

Structured Settlements and Periodic Payment Judgments

Law Journal Press, an ALM affiliate, has released the most recent update (Release 38) of "Structured Settlements and Periodic Payment Judgments" (S2P2J).  Co-authored by Daniel W. Hindert, Joseph Julnes Dehner and Patrick J. Hindert, S2P2J was originally published in 1986 and is updated semi-annually. 

Release 38 features an updated Chapter 5: "Role and Responsibilities of Plaintiff's Counsel in Structured Settlements."  As structured settlement evolve in the post 9/11settlement environment, plaintiff attorneys (as well as disability attorneys and judges) have become increasingly important stakeholders and decision makers. 

Within the context of personal injury settlements, plaintiff attorneys are now required to address complex financial, tax, government benefit and estate planning issues. 

Release 38 of S2P2J provides valuable and timely advice for plaintiff attorneys.

New Chapter 5 ("Role and Responsibilities of Plaintiff's Counsel in Structured Settlements") is the only chapter in S2P2J that addresses structured settlement issues specific to plaintiff attorneys.

Other chapters in S2P2J address issues impacting all structured settlement stakeholders:

• Chapter 1 - Introduction and History;

• Chapter 2 - Taxation;

• Chapter 3 - Financing Alternatives;

• Chapter 4 - Defense Attorneys;

• Chapter 5 - Plaintiff Attorneys;

• Chapter 6 - Case Preparation;

• Chapter 7 - Case Negotiation;

• Chapter 8 - Case Closing;

• Chapter 8A - Settlement Transfers;

• Chapter 9 (with S. Thomas Todd) - Uniform Periodic Payment of Judgments Act;

• Chapter 10 - State Periodic Payment of Judgment Statutes;

• Chapter 11 - Designing a Periodic Payment Judgment;
• Chapter 12 - Annuity Testimony;
• Chapter 13 - Environmental Cases;
• Chapter 14 - Workers Compensation and Structured Settlements;
• Chapter 15 - Social Security and Structured Settlements;

• Appendices and Table of Cases - Release 38 includes a CD containing S2P2J Appendices and Table of Cases.

New Chapter 5 consists of seven (7) sections:

Section 5.01 highlights the importance of settlement planning for plaintiff attorneys including financial, tax, government benefit and estate planning issues.

Considerations include: structured settlements as well as the need for and role of subject matter experts.

Section 5.02 provides a framework for comparing lump sum and structured settlement including tax considerations as well as government benefits.

Section 5.03 addresses the importance of qualified assignments including an analysis of creditor rights in insovencies as well as the impact of UCC Article 9.

Section 5.04 focuses on the risk of nonpayment - how to protect the claimant; evaluating financial strength of annuity providers; and recommended representations from defendants.

Section 5.05 addresses control issues.  What are the critical issues for structured settlements? How should plaintiffs and their attorneys increase control?  What role do privacy issues play?

Section 5.06 provides advice for drafting structured settlement documents, including who has the ultimate professional responsibilities and highlights the importance of defining payees.

Section 5.07 summarizes attorney compensation in structured settlement cases including calculation of appropriate fees and taxation of deferred compensation.

NAMSAP

NAMSAP (the National Alliance of Medicare Set-aside  Professionals) held it first annual meeting and educational conference November 11, 2005 in Orlando, Florida.  Approximately 75 persons attended including attorneys, life care planners and structured settlement professionals.

NAMSAP, with 139 charter members, represents an important new settlement planning organization.  NAMSAP exclusively addresses the issues and challenges of the Medicare Secondary Payer (MSP) statute and its growing impact on workers’ compensation and liability settlements. 

Congress enacted the MSP statute in 1980 (Omnibus Reconciliation Act of 1980) to curb the rising cost of Medicare.  The 1980 MSP provisions require liability, automobile and no-fault insurance to make payment for services rendered to Medicare beneficiaries, leaving the Medicare program to provide benefits only as a "secondary" payer.  Pursuant to Section 1862(b) of the Social Security Act passed in 1965, payments for items and services under workers compensation laws were already primary to Medicare.

The Center for Medicare and Medicaid Services (CMS) is the Federal agency within the Department of Health and Human Services responsible for administering Medicare and Medicaid.  In applicable cases, CMS will not recognize a settlement that does not protect Medicare's interests as secondary payer.  Because Federal law takes precedence over state laws and private contracts, Medicare is the secondary payer regardless of state law or plan provisions.  CMS' right of recovery is not subject to any statute of limitations. Despite the earlier legislation, CMS did not initiate serious enforcement of the MSP rules until 2001. CMS' preliminary enforcement of the MSP rules has focused on workers compensation cases. 

A Medicare Set-aside (MSA) arrangement is an administrative and funding mechanism used to set aside money for future medical expenses that would otherwise be covered by Medicare.  CMS currently recommends obtaining approval of MSA arrangements in certain categories of workers compensation cases when future medical expenses are specifically closed in settlement documents.  CMS has issued several memoranda addressing MSA arrangements.  Although CMS does not mandate a specific type of MSA funding, custodial accounts, trusts and/or annuities represent the most common MSA funding mechanisms.

NAMSAP's purposes, according to President  Patty Meifert, focus on the MSP statute and include:

• Defining standards and best practices;

• Promoting multiprofessional perspectives;

• Creating a forum for learning;

• Offering a unified voice on policy issues;

• Protecting the interests of all parties.

NAMSAP's Orlando conference provided significant interaction among the speakers and audience as well as valuable practical advice.  Speakers included:

• Robert Lewis who discussed case law and potential class actions related to MSP compliance as well as the application of the MSP statute in liability cases;
• John Campbell and Mark Popolizio who summarized the July 11, 2005 CMS Memorandum;
• Tim Nay who explained the relationship of Medicaid special needs planning and MSAs in catastrophic injury cases; and
• Patty Meifert who addressed resolution of Medicare conditional payments.

Although NAMSAP has not announced any additional conferences, future NAMSAP programs are anticipated and hopefully will continue to address important MSP and MSA issues including funding products, tax planning and professional ethics.

NAMSAP's website provides membership information.

For additional information about the impact of the Medicare Secondary Payer (MSP) statute and Medicare Set-aside (MSA) arrangements on structured settlement, see Section 15.02 of "Structured Settlements and Periodic Payment Judgments" co-authored by Daniel W. Hindert, Joseph Julnes Dehner and Patrick J. Hindert and published by ALM.

   

Congratulations Kalamazoo!

The Kalamazoo Promise  represents an exciting and entrepreneurial investment in learning and community development.  Congratulations to Kalamazoo and the Kalamazoo Public Schools.

From one graduate of Kalamazoo's public schools , thanks to everyone associated with the Kalamazoo Promise - including anonymous donors as well as persons who have contributed, and continue to contribute, to make Kalamazoo a special community.

NSSTA 2005 Fall Regional Meeting

The National Structured Settlement Trade Association (NSSTA) held it 2005 Fall Regional Meeting in Washington, D.C. October 25-27.  Highlights included:

• Appearances by Senators Charles Grassley (R-Iowa) and Max Baucus (D-Montana) to receive NSSTA's James Corman Award;
• Presentations by Nancy Starnes of the National Organization on Disability and Gwen Gillenwater of the American Association of People with Disabilities;
• A round table discussion featuring four (4) Congressional Chiefs of Staff.

In addition, Patrick Hindert introduced podcasting to NSSTA.  The podcasting introduction included an audio video presentation featuring The Legal Broadcast Network.

NSSTA's organizational strengths include its political influence (especially in Washington, D.C.) and that political influence was featured at the NSSTA Fall Regional Meeting. 

NSSTA's current leadership team appears to be among its best ever.  President Jeff Bowers has recruited several strong committee chairpersons and added two new NSSTA committees: government benefits and asbestos.   Bowers has also strengthened NSSTA political ties with disability organizations.  In addition to Executive Vice President Randy Dyer and General Counsel Hogan & Hartson, NSSTA has added two important staff resources: Peter Arnold (Marketing) and Eric Vaughn (Federal Lobbying).

Although all structured settlement consultants and product providers benefit generally from NSSTA's  objectives to grow the industry, NSSTA continues to favor the status quo on political issues like settlement tranfers, IRC Section 468B Funds, consumer rights and compensation disclosure.  Their educational program would be stronger with more attention to and wider perspectives on these developing legal issues.

NSSTA 2006 Regional Meeting is scheduled for January 11-13 in Scottsdale, AZ.

Addtional posts about NSSTA.