Beyond Structured Settlements

NAMSAP 2015 Annual Conference

Although some of the 143 attendees at the 2015 Annual Conference of the National Alliance of Medicare Set-Aside Professionals (NAMSAP), held September 30 - October 2 in New Orleans, (including S2KM) may have been confused by the conference theme ("Back to the Future") , the take away conference message was clear:

The Medicare Set-Aside (MSA) market continues to grow in size and complexity and NAMSAP remains "the only non-profit association exclusively addressing the issues and challenges of the Medicare Secondary Payer [MSP] Statute and its impact on workers’ compensation and liability settlements". NAMSAP also seeks and welcomes opportunities to help improve MSA and settlement planning industry standards for documentation, work product and business practices.

MSAS AND STRUCTURED SETTLEMENTS

An MSA is an administrative and funding mechanism utilized in certain categories of settlements to protect Medicare's interests as "secondary payer" under the MSP statute. Although Federal law does not define MSAs, or mandate specific types of MSA funding mechanisms, CMS (the responsible federal agency) has established certain basic guidelines for workers compensation MSAs (WCMSAs).

Following a series of policy memoranda, CMS published a WCMSA Reference Guide (WCRG) on March 29, 2013 plus a WCRG Version 2.0 on November 7, 2013. The WCRG explains WCMSAs as follows: "A WCMSA allocates a portion of the WC settlement for all future work-injury-related medical expenses that are covered and otherwise reimbursable by Medicare. When a proposed WCMSA amount is submitted to CMS for review and the individual or beneficiary obtains CMS’approval, the CMS-approved WCMSA amount must be appropriately exhausted before Medicare will begin to pay for care related to the beneficiary’s settlement, judgment, award, or other payment."

Both the CMS policy memoranda and the WCRG address structured settlement issues and provide guidelines for their utilization in funding WCMSAs. Significantly, these guidelines create an inherent cost advantage for structured settlements compared with lump sum alternatives because of the method CMS requires for calculating WCMSA present values. As a result, WCMSAs represent one of the few submarkets where structured settlements sales have increased since 2008.

Unlike WCMSAs, almost no regulatory authority exists for MSAs in third party liability settlements. In 2012, CMS published an Advanced Notice of Proposed Rule Making (ANPRM) for liability MSAs in the Federal Register - which it subsequently withdrew following negative public comments and rejection by the Office of Management and Budget (OMB). Nevertheless, according to one professional MSA administrator, liability MSAs now represent 30% of his company's cases and the percent is growing. No one, he adds, currently submits liability MSA cases for CMS approval.

NAMSAP ACCOMPLISHMENTS AND POLITICAL ADVOCACY

Under the leadership of current president, Kimberly Wiswell, and its Board of Directors, NAMSAP's 2015 accomplishments and enhanced membership values have included: expanding membership; regional conferences; educational webinars; a recurring "legal roundtable"; an active website listserv; improved communications with CMS; a new strategic plan; sponsorship of NAMSAP's first "Take the Hill" Day in Washington D.C.; plus a new association management team.

In addition to tracking Medicare compliance developments generally, NAMSAP's 2015 political agenda has sought to address perceived CMS WCMSA approval deficiencies such as:

• Thresholds result in incomplete protection.
• No direct right of appeal exists.
• Review time-lines are uncertain.
• CMS rules ignore state workers compensation laws.
• CMS assumes all settlements are “commutations”.

Based upon the success of its first "Take the Hill Day", NAMSAP is planning a two-day "policy focus" for its 2016 Regional Meeting - which will take place in Washington, D.C. sometime during March or April and include one day of lobbying and one day of education. Two WCMSA bills (H.R. 1982 and S. 2731) are currently being considered by Congress. Each contains a "direct payment" provision which could have negative consequences for structured settlements as well as professional MSA administrators.

NAMSAP 2015 ANNUAL CONFERENCE

NAMSAP's membership is the most professionally diverse of any U.S. settlement planning association. It includes a mix of attorneys, MSA allocators, MSP compliance consultants, CPAs, claims professionals, structured settlement consultants, guardians, nurses, pharmacists, rehabilitation professionals, and life care planners.

The combination of membership diversity, subject matter complexity, legislative and regulatory developments plus an expanding MSA market create extraordinary challenges for NAMSAP in planning and organizing its educational programs. NAMSAP Conference Chairperson Tom Matson, Education Committee Chairman Thomas Spratt, Executive Director Brian Bailey and Meeting Planner Sarah Zenna, therefore, deserve congratulations for an outstanding program.

The NAMSAP conference itself was preceded by a three-day "Certified Medicare Secondary Payer Professional" (CMSP) certification program created and administered by the Louisiana Association of Self-Insured Employers (LASIE). Although "designed to give advanced knowledge and practical skills required to acquire certification in Medicare Secondary Payer Compliance", this educational program appears to offer a valuable and comprehensive MSP and MSA introductory curriculum appropriate for any settlement planning or structured settlement professional.

To supplement it primary program, NAMSAP offered its own MSP introduction - a half-day of "Pre-Conference Sessions" addressing: 1) MSA Submitter Errors; 2) MSP Industry Ethics; and 3) an MSP Compliance Situational Case Study.

These two optional preliminary programs allowed the NAMSAP conference organizers to focus its primary educational conference on its largest membership constituencies (MSA allocators and MSP attorneys) which created its own set of challenges. Because of their different backgrounds and roles, a predictable knowledge gap exists between MSP attorneys and MSA allocators - with MSA administrators, insurance professionals, structured settlement brokers and other MSP/MSA professional stakeholders falling somewhere in between.

The following S2KM listing of topics ( with speakers) attempts to communicate both the range of NAMSAP's 2015 Annual Conference educational offerings as well as NAMSAP's efforts to maintain and expand the MSP/MSA community of professional practice:

Directed Toward All MSP/MSA Professionals

• MSP Compliance - Kathleen Wyeth and Steve Pratt
• How the ACA Impacts Medicare, Medicare Compliance and MSAs - Patrick Hindert and Ann Koerner
• Case Study - Liability MSAs - David Cherry and Wayne Fontana
• Common MSP Questions - Christine Melancon
• Networking Lunch - New Orleans History and Culture - Carolyn Kolb

Directed Primarily Toward MSA Allocators

• Applying Evidence Based Medicine Guidelines to Fusions for Injured Workers - Dr. Marjorie Eskay-Auerbach
• Long-Term Narcotic Use in MSAs - Meredith Warner and Steve Miller
• Re-Review/Reconsideration - Michelle Letter; James Raines; Jeff Knipper
• Data and Development Committee Update - Debbe Marciko and Sandra Mackler
• Limited Medical Records and the MSA - Denise Wrenn
• Weaning and Detox Strategies in the MSA - Jill Breard; Jennifer Doherty; Dr. Steven Moskowitz
• Pharmacy Formularies and MSAs - Mark Pew; Dr. Matthew Foster; Dr. Steve Feinberg

Directed Primarily Toward MSP Attorneys

• Legal Update - Heather Schwartz Sanderson; Michelle Ready; Annie Davidson
• Private Cause of Action - Amy Bilton and Heather Hatch
• State Workers Compensation Laws and CMS - Jennifer Jordan and Danielle Marone

Among NAMSAP's most impressive conference offerings for attendees was a beta test mobile app. The app featured a comprehensive event guide (including speaker bios, notes and handouts) and social networking tools. It also offered a Google map centered on the conference hotel plus a simple, but effective search feature. Assuming NAMSAP offers similar mobile apps at future conferences, this dynamic resource deserves even greater promotion including an introductory demonstration.

For S2KM's reporting of prior NAMSAP conferences, see:

• NAMSAP 2015 Winter Regional Conference
• NAMSAP 2014 Annual Conference
• NAMSAP 2014 Regional Conference
  • Part 1
  • Part 2

For previews of additional upcoming settlement planning conferences, see: 2015-2016 Educational Conferences

2015-2016 Educational Conferences

During a transitional era for both personal injury settlement planning and structured settlements, participating professionals are fortunate to have multiple upcoming educational opportunities to update and expand their knowledge. Here is an overview of recommended upcoming national conferences listed chronologically. Note: some associations restrict conference attendence to association members.

1. NAMSAP 2015 Annual Conference - September 30 - October 2 in New Orleans. The National Alliance of Medicare Set-Aside Professionals (NAMSAP) is "the only non-profit association exclusively addressing the issues and challenges of the Medicare Secondary Payer Statute and its impact on workers’ compensation and liability settlements". Medicare set-aside arrangements (MSAs) represent an increasingly important submarket for structured settlements. One of the innovative features of this conference: NAMSAP has developed an App so attendees can stay connected before, during and following the conference. Among the speakers, S2KM's Managing Director, Patrick Hindert, and Ann Koerner will lead a discussion titled: "How the Affordable Care Act Impacts Medicare, Medicare Compliance and MSAs". For S2KM's most recent NAMSAP reporting, see: NAMSAP 2015 Winter Regional Conference .
2. Stetson 2015 SNT Conference - October 14-16 in St. Petersburg, Florida. Stetson Law School's National Conference on Special Needs Trusts (SNTs) is widely recognized as the preeminent educational forum for this topic. The two-day conference offers one day of "Basics" plus one day of "Advanced" SNT education plus two additional and optional pre-conference half-day programs ("The Tax Intensive" and "Pooled Trusts"). Similar to MSAs, SNTs represent a strategic submarket for structured settlements. Among important recent developments: 1) the impact of the Affordable Care Act (ACA) on existing and prospective SNTs; 2) The Special Needs Trust Fairness Act, recently approved unanimously by the U.S. Senate, would correct a previous legislative error and allow individuals with disabilities, who have capacity to create their own SNTs.
3. NSSTA 2015 Fall Educational Conference - October 28-30 in Phoenix, AZ. The National Structured Settlement Trade Association (NSSTA) is "the leading voice of the structured settlement industry" with nearly 1200 individual members. NSSTA has previously announced an "Industry Growth Initiative" - "designed to identify opportunities to expand the use of structured settlements and bring those opportunities to the structured settlement marketplace" - which appears to focus multiple growth-oriented goals NSSTA president Michael Goodman identified during NSSTA's 2015 Annual Meeting. The first progress report for this Growth Initiative is scheduled to occur during NSSTA's Fall Conference. As a prelude to its Growth Initiative, NSSTA commissioned a three-part survey of traditional structured settlement stakeholders which S2KM reviewed in previous blog posts: senior claims executives (Part 1); front line claims professionals (Part 2); and plaintiff attorneys (Part 3).
4. NASP 2015 Annual Conference - November 10-12 in Las Vegas. The National Association of Settlement Purchasers (NASP), "the only trade association related to the secondary market for structured settlements, ... is dedicated to ensuring the secondary market for [such] transfers remains fair, competitive, and transparent." Following years of conflict between the primary and secondary structured settlement markets, an historic "President's Panel" will highlight NASP's 2015 conference featuring the respective presidents of NSSTA (Michael Goodman) and NASP (Patricia LaBorde). This event was preceded by NSSTA inviting LaBorde to speak at the NSSTA 2014 Fall Educational Conference. and appears to signify increased cooperation between the two associations extending to legislation as well as education. Among other speakers, S2KM's Patrick Hindert will provide "A Primer on Special Needs Trusts and Medicare Set-Asides" for secondary market attendees. For S2KM's most recent NASP reporting, see: NASP 2014 Annual Conference .
5. Evolve 2015 QSF Symposium - November 12-13 in Memphis. Organized "to provide a forum for open dialogue that helps shape industry developments", Evolve Bank and Trust's Annual Qualified Settlement Fund (QSF) Symposium offers a valuable and unique addition to the growing number of personal injury settlement planning conferences and educational resources. Although Rev. Proc. 93-34 permits QSFs to make IRC 130 qualified assignments, and no tax authority exists prohibiting single claimant QSFs, structured settlement annuity providers currently refuse to accept single claimant QSFs which they broadly define to encompass claims by family members, plaintiff attorneys, lien holders and creditors. Evolve's recent symposiums have avoided the single claimant controversy and focused instead on other important QSF and settlement planning issues. For S2KM's most recent Evolve reporting, see: Evolve 2014 QSF Symposium.
6. NSSTA 2015 MSSC Program - November 18-21 at the University of Notre Dame. Complementing and extending its Certified Structured Settlement Consultant (CSSC) Professional Certification Program, NSSTA has added a new Master's Certificate in Structured Settlement Consulting (MSSC). This program is one of multiple new educational initiatives, including Structures 202 (a comprehensive program of case management fundamentals and business development opportunities) and "NSSTA University" (whereby NSSTA will partner with any member to secure CE credits for member-sponsored educational seminars or insurance claims departments or law firms), which NSSTA is offering to attract and train "Next Generation" professionals to grow the structured settlement market.
7. NAELA 2016 Summit - January 28-30 in Newport Beach, CA. The National Academy of Elder Law Attorneys (NAELA) was the first and remains the largest U.S. professional association focused on the needs of elder and special needs law attorneys. NAELA was founded in 1986 and now consists of more than 4300 attorney members. Because NAELA was slow to embrace special needs as a separate strategic market, NAELA members independently formed the Special Needs Alliance (Alliance) and the Academy of Special Needs Planners (ASNP). Most Alliance and ASNP member, however, remain active NAELA members and look to NAELA as their primary political lobbying resource. NAELA member resources include the NAELA Journal which has published a series of excellent articles about the Affordable Care Act.
8. AANLCP 2016 Annual Conference - February 5-8 in San Antonio. The increasing number, importance and roles of life care planners represents one of the most significant developments S2KM has observed while attending recent structured settlement and settlement planning stakeholder educational conferences. Life care planners predominate the membership of NAMSAP and have been featured speakers at other recent structured settlement and settlement planning stakeholder conferences. Multiple life care planners exhibit at American Association for Justice (AAJ) national conferences. The American Association of Nurse Life Care Planners (AANLCP) is one of two national associations of life care planners. During 2014, S2KM published an interview with nurse life care planner Wendie Howland. Patrick Hindert's article "How the Affordable Care Act Impacts Life Care Planners" was featured in the 2014 Winter Issue of the AANLCP Journal.
9. AAJ 2016 Winter Conference - February 27 - March 1 - Boca Raton, FL. The American Association for Justice (AAJ, formerly ATLA) "is the world's largest trial bar" whose mission includes supporting "the work of attorneys in their efforts to insure that any person who is injured by the misconduct or negligence of others can obtain justice in America's courtrooms ..." Plaintiff attorneys, however, also perform essential settlement planning roles which include recommending appropriate product and service providers to their clients. As one result, plaintiff attorneys represent the primary marketing target for companies and professionals offering settlement planning products and services - as well as a logical priority marketing target for growing the structured settlement market. Multiple companies offering structured settlement, lien resolution, MSA compliance, life care planning, legal finance and economic consulting services were among the 141 sponsors and exhibitors at the AAJ 2014 Annual Meeting. NSSTA recently commissioned a Plaintiff Attorney Structured Settlement Survey.
10. ASNP 2016 Annual Conference - March 10-12 in Tucson, AZ. The Academy of Special Needs Planners (ASNP) and the Special Needs Alliance are both national associations of special needs attorneys most of whom are also members of NAELA and many of whom also increasingly specialize in personal injury settlement planning. ASNP recently opened its membership (with a vetting process) to non-legal (finance/insurance) professionals and also sponsored a 12-part Settlement Planning Webinar Series. Unlike educational programs sponsored by NAELA and SNA, ASNP's annual conferences are open to non-members. For S2KM's most recent ASNP reporting, see: ASNP 2015 Annual Conference - which includes a comparison of settlement planning vs. special needs planning.
11. SSP 2016 Annual Conference - March 10-12 - Tucson, AZ. Society of Settlement Planners (SSP) members "work with the injured party to create a comprehensive and integrated settlement plan focused on meeting the needs of the claimant." They also "seek to elevate the profession of settlement planning by promoting ethical industry standards, providing education and certification and knowledge transfer among its members." For the first time, SSP's 2016 conference will feature joint educational sessions and social events with ASNP. For S2KM's most recent ASNP reporting, see: SSP 2015 Annual Conference Part 1 and Part 2.
12. NSSTA (April 6-8 in Palm Springs, FL), NAELA (April 7-9 in Denver) and AAJ (July 23-26 in Los Angeles) have also separately announced their 2016 Annual Meetings.

NAELA Journal - Recent ACA Articles

With last week's Supreme Court decision in King v. Burwell, upholding tax credits for individuals purchasing health insurance through the federal insurance exchange in addition to state insurance exchanges, the Patient Protection and Affordable Care Act (ACA) further imbedded its sweeping changes into America's health care system.

If they have not done so already, structured settlement consultants and other personal injury settlement planners should now be thinking strategically about how the ACA impacts their clients as well as their own work product and professional services. S2KM has previously reported on ACA analysis by speakers at conferences attended by S2KM as well as ACA analysis by authors reviewed by S2KM.

Among settlement planning professionals, special needs attorneys within the Academy of Special Needs Attorneys (ASNP) and the National Academy of Elder Law Attorneys (NAELA) have been notably proactive in analyzing the ACA. Not coincidentally, San Francisco attorney Kevin Urbatsch serves as both National Director for ASNP and as Editor in Chief of the NAELA Journal.

ASNP has featured ACA speaker presentations at each of its annual conferences beginning in 2011 (Cynthia Barrett); 2012 (David Lillisand); 2013 ( Scott Solkoff); 2014 (Lillesand, Ann Koerner, Scott McDonald, and Bradley Frigon); and 2015 (Solkoff and Koerner).

The "NAELA Journal", which featured a comprehensive ACA review in its Spring 2011 issue plus an additional Medicare article detailing various cost-saving components of the ACA in its Spring 2013 issue, has added two additional ACA articles in its most recent Spring 2015 issue.

Although written for special needs and elder law attorneys (and available only to NAELA members), the two most recent "NAELA Journal" articles raise important issues and offer valuable insights about the ACA which are applicable to all settlement planning professionals. This blog post summarizes those articles and considers their analyses from a structured settlement and settlement planning perspective.

Scott Solkoff's NAELA Journal Report

In his Spring 2015 NAELA Journal article titled "Report on the Patient Protection and Affordable Care Act: Its Impact on the Special Needs and Elder Law Practice", Scott Solkoff discusses the consumer provisions of the ACA, as opposed to the industry and regulatory provisions.

Solkoff characterizes the ACA as "a big new law that includes a mass of new statutes, state and federal regulations, court decisions, and variances that differ from state to state and county to county." He maintains that trained professionals (presumably including structured settlement consultants and settlement planners), as well as consumers (presumably including personal injury claimants), will be challenged to understand and navigate this new system.

How has the ACA changed health insurance? Quoting attorney David Lillesand, Solkoff emphasizes: the ACA "creates a whole new definition of ‘health insurance.’” Solkoff explains this "new ACA definition" by highlighting some of the deficiencies of the "old definition" of health insurance:

"policies with annual and lifetime limits, policies with no “medical loss ratio” to control excess administrative expenses and profits, policies that could limit or deny coverage to people with disabilities or pre-existing conditions, parental policies that would not accept children beyond a certain age or status, policies with less preventive care coverage, and policies that could be more restrictive or punitive on doctor choice or emergency room access."

ACA health insurance policies now must include all these features.

Solkoff's article discusses the ACA's impact on: Medicaid; Special Needs Trusts (SNTs); Medicare; personal injury settlements; tax and financial planning - all of which are significant for structured settlements and settlement planning.

Medicaid and SNTs

The ACA's elimination of pre-existing condition restrictions in health insurance policies profoundly impacts persons with disabilities who formerly relied on Medicaid as their only health insurance option. It also complicates the insurance decision making process, as well as "needs analysis" (a structured settlement and settlement planning priority) as Solkoff illustrates with a suggested list of post-ACA client information questions.

For many clients, Solkoff points out, SNTs and Medicaid are now options and no longer necessities. Although SNTs continue to serve the same purpose, the ACA has changed the determination of whether creation of a SNT is appropriate. For some clients, Solkoff concludes, the best solution may require the creation of a SNT as well as the purchase of an ACA health insurance policy.

Solkoff summarizes the ACA provisions which expand Medicaid eligibility to permit individuals who lack the resources to purchase private insurance through the exchanges, even with credits and subsidies, to gain access to health care. This Medicaid expansion, however, was restricted by the U.S Supreme Court. In the same 2012 decision in which it upheld Congress' power to enact most of the ACA's provisions, the Supreme Court ruled the federal government cannot mandate states to expand the Medicaid eligibility pool. To date, 22 states have refused to expand Medicaid leaving 4.3 million Americans uninsured.

Another important Medicaid feature Solkoff discusses: the ACA does away with asset cap eligibility tests and substitutes a new uniform eligibility measure, the Modified Adjusted Gross Income (MAGI) standard. Certain Medicaid applicants, however, such as SSI beneficiaries who automatically qualify for Medicaid, are exempt from the MAGI calculation.

Medicare

Many people mistakenly believe the ACA does not affect Medicare, perhaps Solkoff suggests, because the health insurance exchanges do not affect Medicare. To the contrary, according to Solkoff, changes to Medicare are among the most significant ACA reforms to affect the elderly and people with disabilities. Although Medicare remains a single-payer system run by the federal government, Solkoff highlights several important Medicare-related changes resulting from the ACA:

• Increased coverage for prescription medications and preventive care;
• Rewards for health care providers for enhancing services;
• Gradually closing of the gap in drug coverage (known as the “donut hole”);
• Rewards for Accountable Care Organizations (ACOs) that save money through the Medicare Shared Savings Program (MSSP);
• Creation of the Independent Payment Advisory Board (IPAB) to oversee Medicare costs with authority to make changes to the Medicare program.

Tax and Financial Planning

Solkoff identifies several ACA-created tax and financial planning provisions that could impact structured settlement and settlement planning calculations: 1) tax credits for premium payments and subsidies using the new MAGI calculations; 2) increased thresholds for taxpayers to deduct unreimbursed medical expenses from 7.5% to 10% of Adjusted Gross Income (AGI); and 3) a new Net Investment Income Tax of 3.8% on certain net investment income of individuals, estates and trusts with AGI above statutory thresholds.

Personal Injury Settlements

In addition to the ACA-related changes summarized above, structured settlement consultants, settlement planners and their clients will need to consider the ACA's impact on the size of individual personal injury settlements - and, more specifically, on the calculation of future medical expenses. S2KM has addressed this issue in a series of prior blog posts beginning with this review of an article by plaintiff attorney Seth Cardeli featured in the May 2014 issue of the AAJ's "Trial Magazine".

Similar to Cardeli, Solkoff anticipates defendants will now argue their exposure for annual future medical expenses, before considering inflation and present value discounting, "should be no greater than the predictable cost of premium payments, deductibles, and copays that are capped by the total [out of pocket] expense limits imposed by the ACA for the plaintiff’s actuarial life expectancy. In 2014, this cap was $6,350."

Like Cardeli, Solkoff also recognizes potential counter-balancing legal issues created by state-specific collateral source rules and subrogation clauses. Perhaps most significantly, Solkoff points out, quoting Professor Victor Matheson: "[t]he most expensive component of most big life care plans is either home nursing care or institutional care, neither of which is covered by ACA compliant insurance plans."

Strategic Impact?

Solkoff's article highlights how the ACA fundamentally changes the health care system for persons with disabilities - individuals who represent clients for special needs attorneys as well as structured settlement consultants and personal injury settlement planners.

What strategic impact will the ACA have on these professionals - individually and/or collectively?

Solkoff's article does not confront this existential issue directly or in depth. His analysis, however, encourages readers to reach their own conclusions. For S2KM, these include: 1) disabled persons now have more health insurance options and potential benefits; 2) the ACA creates new knowledge requirements, business opportunities and anticipated competitive challenges, for professionals who advise, and/or negotiate benefits and/or provide products for, disabled persons and their families; 3) the new, overlapping health insurance/settlement planning market can be expected to expand in scope and complexity and also to attract and develop new professionals, products and business models.

E. Spencer Ghazey-Bates NAELA Journal Warning

In a second article appearing in the Spring 2015 issue of the NAELA Journal, titled "The Affordable Care Act and the Continued Commoditization of Elder Law", E. Spencer Ghazey-Bates warns that key provisions of the ACA, when combined with the anticipated addition of predictive technology "will either enable nonattorneys to compete with [elder law] attorneys for clients or result in clients simply self-educating to the point of no longer needing attorney guidance."

The ACA provision which most concerns Ghazey-Bates is the new Modified Adjusted Gross Income (MAGI) test which streamlines Medicaid enrollment by replacing all state-defined Medicaid eligibility criteria - regardless of whether a state opts to expand Medicaid. At least for elder law attorneys, he views the new MAGI test as "[t]he single largest change resulting from the ACA" because it "effectively unified 50 separate eligibility methodologies into a single system."

This new unified Medicaid enrollment process, according to Ghazey-Bates, will facilitate nonattorney services to enter the Elder law market by combining new (anticipated) Internet technologies with the ACA's Certified Application Counselor, Navigator, and In-Person Assister consumer assistance programs.

Ghazey-Bates frames his Medicaid analysis in the context of of Richard Susskind's more general transitional theory of the legal profession. Susskind postulates "The End of Lawyers" resulting from an inevitable continuum beginning with unique, customized advice ("bespoke" model) transitioning next to service that draws upon precedents ("standardized" model) and finally to a "systematized" or "packaged" model resulting in the loss of perceived attorney value whereby legal service becomes a commodity differentiated solely by price.

Ghazey-Bates is not alone in predicting some negative consequences for traditional elder law (and special needs law) practice as a result of the ACA. David Lillesand, for example, observed during the ASNP 2012 annual conference : "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."

Ghazey-Bates' article does end with an optimistic observation for elder law attorneys ("demographic shift toward an older population makes Elder Law a growth industry") and this advice: "perhaps the best counterpunch to the forces of commoditization: educating consumers about the value an Elder Law professional brings beyond simple statutory knowledge."

Lessons To Be Learned

What lessons, if any, can structured settlement and settlement planning participants learn from Ghazey-Bates' warnings about potential industry obsolescence and/or professional commoditization as a result of the ACA?

To paraphrase President Obama's words to Republicans in 2009: "Legislation has consequences." Although not yet fully determined, the significant consequences of the ACA for persons with disabilities, combined with advancing Internet technologies, will almost certainly transform the personal injury settlement planning market resulting in new products, new competitors and new business models. In S2KM's opinion, however, special needs attorneys (as knowledge resources) and structured settlements (as strategic products) should both generally benefit from the ACA.

What about individual structured settlement brokers? Their post-ACA success may depend upon whether and how they address the following strategic questions: 1) has your product-specific knowledge become a commodity? 2) what new, unique "value added" knowledge, if any, will you provide to your clients, customers and other settlement planning professionals? 3) what new marketing initiatives, if any, are needed to grow your business? 4) how does the ACA impact your educational priorities? 5) your business model?

For all of S2KM's blog posts about the Affordable Care Act, see the structured settlement wiki.

To read Patrick Hindert's article "How the Affordable Care Act Impacts Life Care Planners", see the 2014 Winter Issue of the Nurse Life Care Planning Journal.

ASNP 2015 Annual Conference

The Academy of Special Needs Planners (ASNP), one of three national associations of special needs attorneys (the others being the National Academy of Elder Law Attorneys (NAELA) and the Special Needs Alliance (SNA), hosted its ninth annual educational conference March 26-28, 2015 in Charlotte, North Carolina.

Special needs attorneys are one of several professional groups who participate in, and are helping to define, the evolving personal injury settlement planning market. Other settlement planning professionals and associations include: structured settlement consultants (SSP and NSSTA); Medicare set-aside professionals (NAMSAP) and life care planners (AANLCP).

Unlike educational programs sponsored by NAELA and SNA, ASNP's annual conferences are open to non-members. ASNP's programs consistently provide superior learning experiences featuring prominent speakers and comprehensive handout materials.

ASNP 2015 SPEAKERS AND TOPICS

• Avram Sacks - "Childhood Disabled Beneficiary Benefits"
• Janet Lowder - "Family Law Issues for a Child or Spouse with Special Needs"
• Thomas Brinker and Vincent Russo - "Tax Traps for Families with Special Needs Children"
• Theresa Varnet and Fredrick Misilo - "SSA's New Trust Guide"
• Larry Rocamora - "Leaving Retirement Benefits to Persons with Special Needs"
• Theresa Varnet and Nancy Chudacoff - "Understanding the ABLE and the Disabled Military Child Protection Act"
• Scott Solkoff and Ann Koerner - "How the Affordable Care Act has Changed Settlement Planning and Special Needs Planning"
• Ask the Experts Panel

Based upon the settlement planning mandate "know your client", which should include your client's legal and financial challenges before, during and following settlement, all of these topics arguably are relevant to settlement planners. Three of ASNP's 2015 educational topics, however, ("SSA's New Trust Guide", "Understanding the ABLE Act" and the "Affordable Care Act") are especially important.

S2KM has reported previously about the ABLE Act as well as the impact of the ACA on structured settlements and settlement planning - including a featured article in the Winter 2014 Journal of Nurse Life Care Planning written by S2KM Managing Director Patrick Hindert titled "How the Affordable Care Act Affects Life Care Planners."

SSA New Trust Guide

Theresa Varnet and Fredrick Misilo's 2015 ASNP presentation about the Social Security Administration's (SSA) new Trust Guide introduced a new settlement planning topic which was repeated with permission and acknowledgments at the SSP 2015 Annual Conference by ASNP National Director Kevin Urbatsch.

The background to the new SSA Trust Guide was a lack of uniformity among SSA Regions especially in reviewing (d)(4)(A) self-settled special needs trusts (SNTs) which are frequently funded with structured settlements as part of personal injury settlement plans. Growing frustrations among SNT stakeholders peaked in May 2012 when the SSA issued a new POMS (SI01120.203b) , without advance notice, creating changes to the "sole benefit rule" resulting in the disqualification of many SNTs.

Note: The Program Operations Manual System (POMS) is "a primary source of information used by Social Security employees to process claims for Social Security benefits."

Responding to complaints from a group of SNT advocates, then SSA Commissioner Michael Astrue initiated a series of meetings in January 2013 between SSA senior staff members and the advocates who had organized themselves into the SSI Advocacy Committee. Many issues/problems were identified and discussed. One result was the new SSA Trust Guide released April 23, 2014 to be used for national SSA trust training and SSA Regional trust evaluation - with the POMS still considered the SSA's primary resource.

Unfortunately, there are some problems with the new SSA Trust Guide - and one of the problems concerns structured settlements. The Trust Guide states that additions to a (d)(4)(A) SNT after age 65 results in disqualification with no mention of the exception that exists in the POMS (SI 01120-203b.1.C) for structured settlements.

NOTE: during the SSP 2015 Annual Conference, NSSTA Executive Director Eric Vaughn identified another problem (d)(4)(A) SNT's funded with structured settlements are experiencing in some states. Although no evidence exists the Deficit Reduction Act of 2005 (DRA) annuity rules are applicable to structured settlements, some state SSA and/or Medicaid employees have attempted to disqualify SNTs if they include structured settlements that violate those rules. For background, see S2KM's 2007 series titled "Inconvenient Questions".

The SSI Advocacy Committee has requested special needs attorneys and other settlement planners to report problems with the SSA Trust Guide to committee members Neil Winston, Mary O'Byrne and/or Theresa Varnet. Although barriers to progress exist, including hostility from the current Congress toward SSI as a welfare dependency and uncertainty whether SSA will continue to meet with advocates, the SSI Advocacy Committee hopes to expand upon its initial success.

ASNP Webinar Series

During the past 18 months, in addition to its annual educational conferences, ASNP has sponsored two separate 12-part webinar series addressing "settlement planning" and "special needs planning". Not only do ASNP's webinars identify topical components of these complex, overlapping professional disciplines, they also raise fundamental questions: what are the similarities and differences between "settlement planning" and "special needs planning"?

Some of the similarities and differences are apparent from the ASNP webinar topics themselves. Others are not.

Settlement Planning vs. Special Needs Planning

Both settlement planning and special needs planning involve disabled clients and require multi-professional teams including special needs attorneys, life care planners, care managers and financial advisors. In addition to personal injury victims, special needs attorneys represent and advise individuals suffering from birth defects and developmental disabilities and their families.

Although special needs attorneys play a variety of roles and provide a variety of products and services, their signature products are special needs trusts (SNTs). For settlement planning, the SNTs are most typically (d)(4)(A) self-settled and pooled trusts. For non-personal injury special needs clients, third party special needs trusts play a more important role.

While many special needs attorney move easily between settlement planning and special needs planning, the financial planning communities for each respective discipline are divided and their products are different. For example: MetLife is an important product provider for both settlement planning (structured settlement annuities) and special needs planning (life insurance; Medicaid annuities). Their respective internal departments, marketing resources and sales forces, however, are completely separate.

Settlement planners (particularly financial planners who sell structured settlements) are one-and-done product providers. They focus on the settlement recipient and how to distribute settlement funds. Their role ends when the settlement occurs. Regardless of discipline, the roles of special needs planners are more diverse (attorney; trustee; guardian); holistic (family and estate planning); and long-term (with settlement planning, for example - continuing well beyond the settlement).

Settlement planning, of course, includes many priority issues which rarely, if ever, occur with non-personal injury special needs planning. For examples: Medicare set-aside arrangements; IRC 468B qualified settlement funds; lien resolutions). Nonetheless, one of the key factors for the successful development of personal injury settlement planning is a better understanding of its relationship with special needs planning. ASNP's webinars and annual conferences provide an excellent continuing resource to accomplish this educational objective.

Links to S2KM reports about prior ASNP conferences: 2014; 2013; 2012; 2011; 2010; 2009; 2008; 2007.

Structured Settlements 2014 - Settlement Planning

During the late 1970s, and throughout the 1980s, when defendants retained exclusive control of structured settlements, many brokers and their liability insurance company clients referred to unsuccessful sales as "cash outs". Their professional interests and curiosity were narrowly defined and focused upon their own product to the exclusion of other settlement related products and services.

With the advent of plaintiff structured settlement brokers, continuing legislative and regulatory developments, plus an expanding array of settlement planning professionals, products and product providers, structured settlements are now viewed by most stakeholders as a subset of the larger and more complex personal injury settlement planning market.

For future success, a new generation of structured settlement leaders must look beyond structured settlements and learn to re-position their product as a fundamental and catalytic settlement planning component. This strategic adjustment requires a more comprehensive understanding of, and interaction with, other professional associations whose members also provide settlement planning products and services.

During 2014, S2KM attended 13 national educational conferences sponsored by such professional associations. What follows are 2014 summaries, from a settlement planning perspective, of the educational programs offered by these professional associations plus links to related S2KM reporting. Prior S2KM blog posts provide 2014 summaries of the primary and secondary structured settlement markets. A subsequent S2KM blog post will summarize continuing 2014 developments related to ELNY and Reliance.

American Association for Justice (AAJ)

The role of personal injury attorneys historically has encompassed settlement planning and negotiation as well as litigation. As settlement planning has become increasingly complex, however, personal injury attorneys now require the services of other settlement planning professionals including: tax attorneys, special needs attorneys, settlement trustees, financial planners, structured settlement specialists, life care planners, case managers, economists, Medicare set-aside (MSA) specialists and damage allocators.

Regardless of case complexity, plaintiff attorneys continue to perform the following essential settlement planning roles:

• Recognizing settlement planning issues which impact their clients;
• Recommending appropriate settlement planning professional resources to their clients; and
• Retaining ultimate responsibility for effectuating settlements.

As one result, plaintiff attorneys represent the primary marketing target for for companies and professionals offering settlement planning services. Seven primary market brokers, one structured settlement annuity provider and one factoring company were among the 141 sponsors and exhibitors at the AAJ 2014 Annual Conference which also included companies offering lien resolution, MSA compliance, life care planning, legal finance and economic consulting services.

Notable features of the 2014 AAJ conferences:

• AAJ's educational programs focused on litigation issues with no structured settlement, no Affordable Care Act (ACA) and almost no settlement planning presentations.
• Exhibiting structured settlement brokers shared one distinguishing characteristic - their product and service offerings extended far beyond traditional structured settlements.

Related Resources:

• AAJ 2014 Winter Meeting
• AAJ 2014 Annual Meeting

Society of Settlement Planners (SSP)

SSP is a professional association most of whose members are plaintiff structured settlement brokers. SSP's 2014 Annual Conference provided three important contributions to settlement planning.

First, SSP President Neil Johnson's SSP keynote speech, which he repeated at NSSTA's Fall Conference, highlighted continuing polarization among structured settlement professionals and proposed the following solutions: 1) recognizing and accepting product diversity; 2) focusing on client and customer service; 3) identifying and pursuing permanent shared interests without necessarily agreeing on all issues; 4) engaging all perspectives to discuss industry problems and issues; 5) improving relationships among stakeholder groups; 6) promoting and practicing settlement planning not settlement selling.

Second, consistent with Johnson's proposed unification solutions, SSP's Secondary Market Panel featured two leading structured settlement transfer experts whose clients typically oppose each other in secondary market cases: NASP Executive Director Earl Nesbitt and Stephen Harris, former co-Chairman of NSSTA's legal committee.

Third, SSP speaker Michele Fuller identified her list of 2014 settlement planning "game changers" as a baseline for industry discussion:

1. Affordable Care Act.
2. Lien resolution statutory and regulatory developments.
3. Federal recognition of same-sex marriages.
4. Wrongful death caps determined unconstitutional.
5. State and federal tax reform.
6. Potential reductions in social security benefits.
7. MSAs in liability cases.
8. Settlement planning goes cyber.
9. Increasing need for Qualified Settlement Funds.
10. Increasing number of persons with disabilities.

Related Resources - SSP 2014 Annual Conference

• Part 1 - Secondary market panel.
• Part 2 - Conference summary.

National Structured Settlement Trade Association (NSSTA)

By inviting NASP President Patricia LaBorde and SSP President Neil Johnson to speak at its members-only 2014 Fall Educational Conference, NSSTA took a symbolic step toward restoring its original vision as articulated by David Ringler, NSSTA's first president: "a place where everyone and anyone can sit down with each other and discuss the issues and viewpoints regardless of beliefs is the most important reason for NSSTA."

For the past several years, NSSTA's leadership has superimposed a political litmus test for membership, as well as for topics and speakers at its educational conferences. NSSTA's near-sighted strategy has limited the potential growth of structured settlements within the larger and more complex settlement planning market and created multiple challenges for the next generation of structured settlement leaders.

Structured settlements, however, represent a core settlement planning product with emerging product improvements and nontraditional products demonstrating the potential for settlement planning market expansion. In addition, NSSTA's Fall conference underscored, and re-enforced, NSSTA's and NSSTA members' strategic settlement planning relationship knowledge about and with: 1) plaintiff attorneys; 2) insurance associations; 3) insurance claims adjustors; 4) national consumer associations; 5) U.S. Congressional members; and 6) MSA administrators - as well as with SSP and NASP.

Related Resources:

• NSSTA 2014 Fall Educational Conference
• Potential "Game Changing" Structured Settlement PLR
• Structured Settlements 2014 - Primary Market

National Association of Settlement Purchasers (NASP)

Assuming settlement planning includes adjustments during an injury victim's lifetime, structured settlement transfer (factoring) companies should be included among settlement planning participants. Like NSSTA, its primary market counterpart, NASP and its members face serious challenges which NASP president Patricia LaBorde acknowledged during NASP's 2014 Annual Conference.

"There are some forces working against us right now" Laborde stated, "and we need to remain diligent so our customers (structured settlement recipients who sell payment rights to NASP member companies) continue to have access to liquidity." These "negative" forces include predicted secondary market "chaos" resulting from the Washington Square v. RSL case as well as market restrictions resulting from anti-assignment lawsuits.

Shared educational dialogue among representatives of NASP, NSSTA and SSP during 2014 appear to support the possibility of increasing primary and secondary market integration as predicted by Peter Arnold during his NASP conference presentation.

Related Resources:

• NASP 2014 Annual Conference
• Structured Settlements 2014 - Secondary Market

Academy of Special Needs Planners (ASNP)

ASNP is one of three national associations of attorneys whose members practice special needs (SN) planning. SN planning encompasses individuals with congenital and developmental defects, as well as personal injury victims, and therefore represents a parallel market which overlaps with personal injury settlement planning.

For the past eight years, ASNP has sponsored some of the best educational programs addressing settlement planning topics including such fundamental issues as: "know your client", "needs analysis", "best practices", "industry standards" and "product suitability", as well as "professional responsibility, qualifications and liability".

Among other topics, the ASNP 2014 Conference expanded previous ASNP educational programs about the Patient Protection and Affordable Care Act (ACA aka "Obamacare") including a multi-professional "ACA Panel" consisting of: David Lillesand (attorney); Ann Koerner (life care planner); and Scott MacDonald (investment adviser).

Other settlement planning topics addressed during ASNP's 2014 Annual Conference:

• Blaine Brockman and Patricia Kefalas Dudek spoke about "Housing, Food Assistance, Employment Benefits" - critical topics for many people with disabilities which are rarely addressed at structured settlement and settlement planning educational conferences.
• Cynthia Barrett discussed "Post-Windsor Issues for LGBT Couples & Children" - another settlement planning subject other settlement planning conferences failed to encompass.

Expanding its settlement planning educational programs, ASNP is currently sponsoring a 12-part settlement planning webinar series which demonstrates both the growing importance of settlement planning for SN attorneys as well as the broad scope of settlement planning topics.

Related Resources:

• ASNP 2014 Annual Conference
• ASNP Settlement Planning Webinar Series
• ACA and Future Medical Expenses

National Alliance of Medicare Set-Aside Professionals (NAMSAP)

NAMSAP is the only national professional association whose singular focus is Medicare Set-Aside (MSA) arrangements. NAMSAP's growth has paralleled the expansion of workers compensation MSAs (WCMSAs) to satisfy the requirements of the Medicare Secondary Payer (MSP) Act. Enacted in 1980, the MSP Act requires certain insurers, including liability, automobile, no-fault and workers compensation insurers, to make payment first for services to Medicare beneficiaries regarding claimed injuries, with Medicare responsible only as a “secondary payer.”

The Center for Medicare & Medicaid Services (CMS) published a WCMSA Reference Guide (WCRG) on March 29, 2013 plus a WCRG Version 2.0 on November 7, 2013. Both address structured settlement issues and provide guidelines for their utilization. WCMSAs represent one of the few submarkets where structured settlements sales have increased since 2008 - in large part because the method CMS requires for calculating WCMSA present values provides an inherent cost advantage for annuities compared with lump sum alternatives.

CMS withdrew its Notice of Proposed Rulemaking (NPRM) related to liability MSAs in October 2014 because it failed to gain approval from the Office of Management and Budget (OMB). Therefore, settlement planners must continue to analyze each liability case individually to determine whether and how to protect Medicare's interests.

During NAMSAP's 2014 Regional Conference, Roy Franco predicted the following settlement planning changes likely to result from the Bipartisan Budget Act of 2013, implementation of the ACA and the still anticipated CMS rules for liability MSAs: "workers' compensation, liability and no-fault insurers will all become primary payers vis a vis Medicare, Medicaid and ACA health providers" as part of integrated settlement planning models similar to WCMSAs." Franco added, however, that different state models are likely to develop as a result of both state-specific collateral source rules and the new Medicaid reimbursement rules promulgated by the Bipartisan Budget Act of 2013.

Related Resources

• NAMSAP 2014 Regional Conference
  • Part 1
  • Part 2
• NAMSAP 2014 Annual Meeting
• Bipartisan Budget Act of 2013

Evolve Qualified Settlement Fund (QSF) Symposium

Organized "to provide a forum for open dialogue that helps shape industry developments", the 2014 Evolve QSF Symposium avoided the single claimant controversy and focused instead on other important QSF and settlement planning issues including:

• How QSFs reconfigure the traditional settlement planning process.
• QSF-related compensation issues for administrators and structured settlement brokers.
• The increasingly important settlement planning roles for life care planners and case managers.
• QSF-related tax issues such as state taxation, foreign structured settlement assignment companies and structured attorney fees.

Related Resources

• Evolve 2014 QSF Symposium
• Single Claimant QSFs Revisited
• "How the ACA Affects Nurse Life Care Planners"
• Wendie Howland Interview

National Academy of Elder Law Attorneys (NAELA)

NAELA was the first and remains the largest U.S. professional association focused on the needs of elder and special needs law attorneys. Responding to its own strategic challenges, NAELA organized its 2014 Annual Conference to address what it perceives to be its two primary strategic issues: 1) the future needs of persons with disabilities; and 2) the future of elder law.

Compared with ASNP, however, NAELA's educational programs rarely address settlement planning or structured settlements. When NAELA members discuss special needs planning, many tend to think about developmental (as opposed to personal injury) disabilities. Unfortunately, many NAELA members view structured settlements negatively despite familiarity with the concept and a general affinity for annuities.

Related Resources

• NAELA 2014 Annual Conference
• Person-Centered Planning
• Cornell Disability Studies, Research, Statistics

ACA and Future Medical Expenses - 2

The Affordable Care Act (ACA) refers to two controversial laws enacted in March 2010, the Patient Protection and Affordable Care Act and the Health Care Education and Reconciliation Act, which restructure the fundamental relationship among government, health care providers and health care recipients and profoundly impact persons with disabilities.

Although legal challenges, political debate and disputes about future insurance premiums and health care costs continue, the Supreme Court upheld almost all of the ACA's provisions in June 2012, including the individual mandate and elimination of pre-existing condition restrictions, which became effective nationally on January 1, 2014.

With the ACA's primary constitutional framework now largely operational, various "experts"  increasingly are discussing and debating what impact the ACA will have upon future medical expenses in personal injury cases - as well as its related impact on structured settlements.

In a prior blog post, S2KM re-introduced these issues by summarizing an article written by Seth Cardeli, titled "Thwart the Assault on Future Medical Expenses", which appeared in the May 2014 issue of the American Association for Justice (AAJ) Trial Magazine.

The new and evolving legal construct for future medical expenses in personal injury cases created by the ACA is complicated, controversial and important. Continuing discussions and analysis should not proceed within an intellectual vacuum. In additional to the ACA, related laws and legal developments such as Medicaid (including the Bipartisan Budget Act of 2013), Medicare (including WCMSAs , liability MSAs and MMSEA) and/or state specific collateral source and subrogation rules must be considered.

This blog post summarizes ACA-related analysis by speakers at professional conferences S2KM has previously attended and includes excerpts from prior S2KM reviews of those conferences. The purpose is to provide a point of reference for future S2KM reporting about the legal interplay involving the ACA, personal injury cases and structured settlements. A subsequent blog post (ACA and Future Medical Expenses - 3) will summarize similar ACA analysis from articles and papers previously reviewed by S2KM.

Conference Speakers Addressing ACA Issues

Academy of Special Needs Planners (ASNP) - Among the professional association conferences S2KM has attended since 2010, the ASNP has provided the most consistent and comprehensive ACA reporting.

Cynthia Barrett - During the 2011 ASNP Annual Conference, Cynthia Barrett highlighted the following questions she anticipated plaintiff attorneys would most likely ask about health care reform and the ACA on behalf of their personal injury clients:

• 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?
• 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.

David Lillesand - Based upon his experience in Florida, where the Affordable Care Act (ACA) prohibition against pre-existing exclusions already existed in 2010, David Lillesand offered the following preliminary observations during the ASNP 2012 Annual Conference:

• 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.

ASNP 2013 Annual Conference

Scott Solkoff - Continuing its analysis of the ACA, the ASNP 2013 Annual Conference featured Scott Solkoff who predicted:

• 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.

Social Security Administration Representatives - During a subsequent question and answer session at the ASNP 2013 Annual Conference, moderated by Kevin Urbatsch and featuring representatives of the Social Security Administration, 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.

ASNP 2014 Annual Conference

The ASNP 2014 Annual Conference expanded previous ASNP educational programs about the ACA and coincided with news the ACA had exceeded enrollment expectations and achieved its primary objective of substantially expanding healthcare in America.

ASNP's 2014 conference featured two ACA presentations:

• A multi-professional "ACA Panel" consisting of: David Lillesand (attorney); Ann Koerner (life care planner); and Scott McDonald (investment adviser).
• "Special Needs Trust (SNT) Taxation" discussion by Bradley Frigon - focusing on strategies for maximizing health care coverage and minimizing costs.

Both of ASNP's 2014 ACA presentations highlighted the importance of health insurance education and the need for health insurance expertise as part of the settlement planning and/or special needs planning team. Some of the ACA resources and issues addressed:

• ACA's definition of "health insurance" - 10 key requirements.
• The ACA's definition of "modified adjusted gross income" (MAGI) - to determine eligibility for ACA premium tax credits and Medicaid expansion.
• Calulating MAGI - and whether structured settlements are included or excluded.
• ACA assessment questions - and how they expand "needs analysis".
• ACA flowchart - for determining the proper plan under the ACA.
• When to use a SNT vs. purchasing ACA insurance - four alternative strategies.
• Defining the settlement planning process.
• ACA's financial impact on settlement planning.
• Lump sums vs. structured settlements under the ACA.
• Coverage comparisons - based upon types of provider networks, services and authorization requirements.
• Coverage gaps - in states that do not adopt Medicaid expansion.

NAELA and SSP 2014 Annual Conferences

With permission from ASNP and acknowledgments to David Lillesand, Kevin Urbatsch, National Director of ASNP and 2014 Editor-in-Chief of the "NAELA Journal' repeated for both the National Academy of Elder Law Attorneys (NAELA) 2014 Annual Conference and the Society of Settlement Planners (SSP) 2014 Annual Conference substantial portions of ASNP's 2014 ACA Panel summarized above.

In addition, NAELA awarded its 2014 John Regan Writing Award, honoring the authors of the best article published in the "NAELA Journal" during the past year to Alfred Chiplin, Jr. and Bethany Lilly, for their article titled "Medicare’s Future: Letting the Affordable Care Act Work, While Learning From the Past" analyzing various ACA cost-saving components on Medicare.

NAMSAP 2014 Conferences

Roy Franco, a featured speaker at the National Alliance of Medicare Set-Aside Professionals (NAMSAP) 2014 Regional Conference, addressed the settlement planning changes likely to result from the Bipartisan Budget Act of 2013, implementation of the ACA and anticipated CMS rules for liability MSAs.

Franco predicted "workers' compensation, liability and no-fault insurers will all become primary payers vis a vis Medicare, Medicaid and ACA health providers" as part of integrated settlement planning models similar to WCMSAs. He added, however, that different state-specific models may develop as state Medicaid agencies begin responding October 1, 2014 to the new Medicaid reimbursement rules promulgated by the Budget Act of 2013.

Medicare Set-Aside Arrangements (MSAs) represent one strategic link between Medicare cost savings and future medical costs in both workers compensation and personal injury cases as well as the primary defining topic of every NAMSAP educational conference including NAMSAP's 2014 Annual Meeting.

The Center for Medicare & Medicaid Services (CMS) has calculated WCMSA amounts totaling approximately $1.8 billion in FY 2013. CMS published a WCMSA Reference Guide (WCRG) on March 29, 2013 plus a WCRG Version 2.0 on November 7, 2013. The WCRG's intended purpose: to help WCMSA professionals, beneficiaries and other stakeholders "understand CMS' [WCMSA] amount approval process and to serve as a reference for those electing to submit such proposals to CMS for approval."

Both the CMS policy memoranda and the WCRG address structured settlement issues and provide guidelines for their utilization in funding WCMSAs. WCMSAs represent one of the few submarkets where structured settlements sales have increased since 2008 - in large part because the method CMS requires for calculating WCMSA present values provides an inherent cost advantage for annuities compared with lump sum alternatives.

CMS has not yet published definitive rules for using MSAs in liability cases (LMSAs). CMS did publish an Advanced Notice for Proposed Rule Making (ANPRM) on June 14, 2012 in the Federal Register which included seven different option to satisfy obligations for future medicals in liability cases. CMS also published RIN: 0938-AR43 in Spring of 2013 outlining a timetable for the proposed rule. No such LMSA rule, however, has yet been published.

For S2KM's complete reporting about the ACA and structured settlements, see the structured settlement wiki.

ASNP 2014 Annual Conference

Personal injury settlement planning and special needs planning represent two overlapping professions undergoing transformation and expansion as complex new legislation, regulations and case law interact to redefine their legal environment.

In addition to studying these new laws, settlement planners and special needs planners must address their impact on fundamental issues such as "know your client", "needs analysis", "best practices", "industry standards" and "product suitability", as well as "professional responsibility, qualifications and liability".

For the past eight years, the Academy of Special Needs Planners (ASNP) has sponsored some of the best educational programs addressing these laws and issues. The ASNP 2014 Annual Conference, which took place March 27-29 in Denver, was no exception.

Among other topics, the ASNP 2014 Conference expanded previous ASNP educational programs about the Patient Protection and Affordable Care Act (ACA aka "Obamacare"). ASNP's conference coincided with news the ACA has exceeded enrollment expectations and achieved its primary objective of substantially expanding healthcare in America:

• More than 7.1 million previously uninsured Americans purchased health insurance prior to the March 31, 2014 enrollment deadline; and
• Three million additional Americans enrolled in the ACA's expanded Medicaid coverage between October 1, 2013 (the start of the ACA's open enrollment period) and February 28, 2014 (the most recent figures available).

Although ACA political debate will continue, it is past time for settlement planners, including structured settlement professionals, and special needs planners to analyze how the ACA impacts their clients, their work product and their business model.

ASNP's 2014 conference featured two ACA presentations:

• A multi-professional "ACA Panel" consisting of: David Lillesand (attorney); Ann Koerner (life care planner); and Scott McDonald (investment adviser).
• "Special Needs Trust (SNT) Taxation" discussion by Bradley Frigon - focusing on strategies for maximizing health care coverage and minimizing costs.

Both ACA presentations highlighted the importance of health insurance education and the need for health insurance expertise as part of the settlement planning and/or special needs planning team. Some of the ACA resources and issues addressed:

• ACA's definition of "health insurance" - 10 key requirements.
• The ACA's definition of "modified adjusted gross income" (MAGI) - to determine eligibility for ACA premium tax credits and Medicaid expansion.
• Calulating MAGI - and whether structured settlements are included or excluded.
• ACA assessment questions - and how they expand "needs analysis".
• ACA flowchart - for determining the proper plan under the ACA.
• When to use a SNT vs. purchasing ACA insurance - four alternative strategies.
• Defining the settlement planning process.
• ACA's financial impact on settlement planning.
• Lump sums vs. structured settlements under the ACA.
• Coverage comparisons - based upon types of provider networks, services and authorization requirements.
• Coverage gaps - in states that do not adopt Medicaid expansion.

David Lillesand also provided a comprehensive overview of "Supplemental Security Income (SSI) Regional Chief Counsel (RCC) Opinions" for first and third party SNTs, non-SNT asset transfers and resources exclusions. Lillesand's handouts included his own 714 page guide with every RCC opinion by state through March 3, 2014 organized by subject matter with a table of contents, index, one paragraph opinion summaries and hyperlinks to the actual text. Nine of these RCC opinions address structured settlement issues including problems involving minors and re-assignment of payment rights.

In leading a discussion about "SSI/POMS Changes", Theresa Varnet announced the formation of a new SSI Advocacy Committee, consisting primarily of special needs attorneys, which has begun meeting with Social Security Administration (SSA) representatives to identify and address various problematic SSI and SNT issues. As part of this project, the SSA is seeking input from a broad spectrum of disability advocates including members of the Arc, ASNP, NAELA, SNT, the Consortium of Citizens with Disabilities and representatives of pooled income SNTs.

Blaine Brockman and Patricia Kefalas Dudek spoke about "Housing, Food Assistance, Employment Benefits" - critical topics for many people with disabilities which are rarely addressed at structured settlement and settlement planning educational conferences. Their presentation and handout materials summarized "the complicated labyrinth of federal code, federal regulations, state regulations and local administrative decision making" which comprise affordable housing law and create "programs that are shamefully underfunded, dramatically understaffed, and obviously needed by many more people than they serve." Additional topics:

• The Supplemental Nutrition Assistance Program (SNAP) - formerly known as the "Food Stamp" program.
• Medicaid expansion and buy-in programs - which allow disabled persons to work and receive Medicaid.
• Vocational rehabilitation services and work incentives.

Sharon Pope (who also chaired this year's ASNP Conference with ASNP National Director Kevin Urbatsch) and Michele Fuller, provided complementary discussions about "SNT Administration" issues. Pope's presentation addressed "Law Firm Trust Departments" - with attorneys acting as trustees. Her handouts included example outlines for SNT "needs analysis" checklists and "personal care plans". Fuller spoke about the "Expanding Duty of Attorneys to Non-Clients". Her presentation highlighted recent cases and her handouts included numerous related articles.

Cynthia Barrett discussed "Post-Windsor Issues for LGBT Couples & Children" from a special needs perspective. Her presentation and handouts addressed such issues as:

• Review of Windsor and related marriage litigation.
• Same sex couple Special Needs Practice Checklist - emphasizing, similar to health care, the importance of state specific analysis.
• Medicaid planning techniques where marriage/parentage status must be established.
• SSA analysis for minor/disabled children of gay couples.
• Practice guide for same sex couples facing a Medicaid crisis.
• Veterans aid and surviving spouse benefits for same sex couples.

In addition to featured speakers and their presentation handouts, the following ASNP sponsors and exhibitors added to the educational value of ASNP's 2014 Conference:

• MassMutual
• Morgan Stanley
• MetLife
• Guardian Trust
• Elder Counsel
• National Care Advisors
• Krause Financial Services
• Elder Law Answers
• Evolve Bank and Trust
• Midland States Bank
• Stewart Home & School

For S2KM reporting about prior ASNP conferences, as well as other structured settlement and settlement planning conferences, see the structured settlement wiki.