This S2KM blog post, the second of three analyzing structured
settlements in 2008, summarizes conferences S2KM attended throughout
the year. A prior post evaluated 2008 from an historical structured
settlement perspective. A subsequent post will discuss challenges
facing the structured settlement industry in 2009. Conferences and
associations are listed alphabetically. For more detailed reports
about these conferences, check the parenthetical links for related S2KM
blog posts. For S2KM's complete historical review of professional
associations and conferences, see S2KM's structured settlement wiki.
Academy of Special Needs Planners (ASNP)
- The second annual ASNP conference underscored the strategic nexus
that exists between special needs planning, settlement planning and
structured settlements. ASNP's "extra-curricular" program featured a
social service project where 30 ASNP conference attendees assisted Families Helping Families
of Southeast Louisiana repair and improve its office headquarters. The
ASNP conference confirmed for this author why special needs attorneys
and financial planners, as opposed to former life insurance salesmen and
claim managers, represent the future of structured settlements and settlement planning.
Although several NSSTA and SSP members attended and/or participated as
speakers, most of the structured settlement industry missed this
valuable conference.
American Association for Persons with Disabilities (AAPD) - Structured settlement leaders from both NSSTA and SSP
attended the 2008 AAPD Leadership Gala dinner in Washington, D.C. - in
addition to many Congressional and Disability leaders. NSSTA was one of
the event sponsors and had earlier featured Andrew J. Imparato,
AAPD President and CEO, as a speaker at NSSTA's 2007 Fall Meeting.
Imparato, a visionary and inspirational leader, is dedicated to
transitioning disabled persons from poverty to economic
self-sufficiency. AAPD's strategy includes uniting disabled persons as
a political block and business market. AAPD's political priorities
include changing the social security statutory definition of "disability" from "unable to work" to address "barriers to work" for disabled persons. Imparato's message for structured settlement professionals: involve yourselves at the local level with independent living centers.
National Academy of Elder Law Attorneys (NAELA) - NAELA's Mission is "is
to establish NAELA members as the premier providers of legal advocacy,
guidance and services to enhance the lives of seniors and people with
disabilities". NAELA's membership consists of 4400 attorneys in the
United States, Canada, Australia and the United Kingdom. Most of the
members of ASNP and the Special Needs Alliance (SNA) are members of
NAELA including many NAELA founders and former Presidents and
Directors. S2KM developed a "Web 2.0 for Lawyers" wiki for the NAELA 2008 Symposium which was also featured in a Legal Broadcast Network (LBN) podcast interview by Scott Drake with S2KM's Managing Director, Patrick Hindert. S2KM also published a 2008 blog post analyzing NAELA and NAELA's CELA certification program from a knowledge management and web 2.0 perspective.
National Alliance of Medicare Set-Aside Professionals (NAMSAP) - Founded in 2005, NAMSAP is a non-profit organization devoted to improving Medicare set-aside arrangements (MSAs) and to facilitating compliance with Medicare conditional payment recovery.
- Background - MSAs are administrative and funding
mechanisms utilized in certain categories of settlements to protect
Medicare's interests as "secondary payer" under the Medicare Secondary Payer (MSP)
statute. Although the MSP rules were enacted by Congress in 1980, CMS
did not begin to enforce the MSP statute until 2001 based upon a series
of CMS policy memoranda for workers compensation cases, several of
which address structured settlement issues.
- MMSEA - On December 29, 2007, President George W. Bush signed into law the "Medicare, Medicaid and SCHIP Extension Act of 2007" (MMSEA).
Beginning July 1, 2009, MMSEA requires liability insurers (including
self-insurers, no-fault insurers and workers compensation insurers) to
determine Medicare status for all claimants and report all claims
involving a Medicare beneficiary to CMS when those claims are resolved.
If the reporting for any claimant is not done in a timely manner, MMSEA
authorizes CMS to enforce a civil penalty against liability insurers of
$1000 per day per claimant. These information requirements and penalty
provisions provide the basis for expanded enforcement by CMS of the MSP
statute.
- MARC - One of the featured presenters at the NAMSAP 2008 Annual meeting was Roy Franco, Director of Safeway's Risk Management Strategies and Chairman of the Medicare Advocacy Recovery Coalition (MARC).
- In discussing the MMSEA requirements for liability cases, Franco said "the issue is not just about reporting" and predicted a "claim freeze" as liability insurers and self-insureds wait for resolution and approval before they pay claims.
- Franco
characterized the MMSEA MSP rules as an attack on traditional best
practices for liability claim management. He predicted legal challenges
and criticized MMSEA rules.
- Franco outlined MARC's priorities
for MMSEA which include changing the law or, alternatively, obtaining
an injunction to stop its July 1, 2009 implementation.
- S2KM reporting - S2KM published seven blog posts in 2008 highlighting recent MSA and MMSEA developments that impact structured settlements including several developments that have occured during 2008.
- S2P2J analysis - S2P2J Release 44 features an extensive update of MSA rules for structured settlements as well as a summary of MMSEA.
National Association of Settlement Purchasers (NASP) - At the NASP 2008 Annual Meeting, Patrick Hindert, S2KM's blog author, moderated a panel discussion titled "How to Improve and Grow the Structured Settlement Market". Participants included: Jack Meligan, Michael Upchurch and Matthew Bracy.
As settlement planners, both Meligan and Upchurch described their view
of the secondary market as a "mixed-bag" of bad and good. The "bad"
part of factoring results from non-professional ("cash now")
advertisements promoted by many factoring companies.
Not only do
plaintiff attorneys dislike "cash now" advertisements, according to
Meligan and Upchurch, they are also less likely to recommend structured
settlements if they believe their clients will eventually sell their
payment rights.
The potential liquidity provided by settlement
transfers improves the structured settlement annuity product.
Lives change. Unexpected events occur. Even the best personal injury
settlement plans need to be reviewed post-settlement and sometimes
adjusted. Settlement transfers, which must be reviewed and approved by
state judges, are appropriate in some cases.
Bracy emphasized the need
for well-educated plaintiffs and plaintiff attorneys - as well as
judges. He noted that many primary market participants have ignored the
settlement transfer business. Bracy acknowledged that good and bad
business practices exist in the secondary market as well as the primary
market. According to Bracy, the potential secondary structured
settlement represents between 5% and 7% of the total primary market.
Most structured settlement cases, according to Bracy, neither require
nor qualify for a settlement transfer.
National Settlement Consultants (NSC)
- Patrick Hindert, S2KM's Managing Director and blog author, was
privileged to speak at the NSC 2008 Annual Meeting and also to attend
NSC presentations and social functions. In addition to Michael and William Goodman,
NSC founders and principals, the NSC presenters included
representatives from ten (10) structured settlement annuity providers
as well as several national settlement planning experts. In retrospect,
the "not-for-publication" May 2008 NSC presentations by some of
the annuity providers now seem especially interesting and important.
Among other topics, these presentations addressed investment exposure
to real estate mortgages plus one annuity provider's study of
settlement transfers by its own structured settlement recipients. Randy Snow's NSC keynote presentation about
change and growth was humorous and thought-provoking. Randy
subsequently participated in a series of S2KM blog interviews
about change and growth in the structured settlement industry. Hindert
provided a structured settlement Medicaid update as part of the NSC
educational program.
National Structured Settlement Trade Association (NSSTA) -
Founded in 1985, NSSTA is the oldest and largest structured settlement
professional trade association. NSSTA's members are primarily
structured settlement consultants and annuity providers. In addition to
providing education and certification, NSSTA historically has served as
the legislative and lobbying voice of the primary structured settlement
market. NSSTA's committees, especially NSSTA's legal committee, are
among the most valuable sources of information about the structured
settlement industry.
- Winter Meeting
- Prominent educational themes and presentations at the NSSTA 2008
Winter Meeting included: trial attorneys; disabled persons and
disability associations; government benefits; structured settlement
legal documentation; legislative and regulatory developments; Internet
marketing; and professionalism.
- Annual Meeting - Chris Diamantis, NSSTA's 2008 President, introduced Joseph Ricci as NSSTA's new Executive Director, and identified NSSTA's strategic priorities for 2008: factoring; advocacy and marketing; professionalism; and governance and communication. J.P. Steele announced the results of a Structured Settlement Survey Report sponsored by AIG which S2KM summarized in a November 23, 2008 blog post. Eric Vaughn,
NSSTA's lobbyist, provided a "Washington Report" analyzing the
then-upcoming federal election from a structured settlement
perspective. Legal committee co-chairman, Michael Miller,
summarized results from 100 factoring cases in which his law firm,
Drinker Biddle, had participated since January 2008. Craig Ulman, NSSTA's General Legal Counsel, provided a State Guarantee Funds primer. Bradley Frigon spoke about special needs trusts. Among other topics, two actuarial presentations discussed structured settlement pricing.
- Fall Meeting
- Although S2KM participated in four committee meetings at NSSTA's 2008
Fall Meeting, S2KM did not attend NSSTA's educational program
because of a scheduling conflict. S2KM's blog coverage of this meeting
therefore was limited to editorial commentary.
Society of Settlement Planners (SSP)
- Founded in 2001, SSP is a
national nonprofit educational and public policy association of
professional structured settlement producers and others who assist
injured claimants in the settlement process. At its 2008 Annual
meeting, the SSP adopted its "Standards of Professional Conduct for Settlement Planners", a multi-year SSP project initiated and managed by SSP Director and attorney Richard Risk.
Carl A. Pierce,
distinguished professor of law at the University of Tennessee, assisted
SSP with this ethics project. Pierce served as a reporter for the
latest revision of the American Bar Association's Model Rules of
Professional Conduct.
Frank Johns, a leading special needs
attorney and settlement planning ethicist, also advised SSP on its
Standards of Professional Conduct. Johns' 2008 SSP presentation introduced a proposed Request for Proposal (RFP) for settlement planners.
Risk organized and moderated SSP's tax panel that featured Jody Brewster, Glenn Mackies and Michael Montemurro.
SSP devoted three presentations to government benefits, the highlight being David Lillesand,
a national leader among social security and special needs trust
attorneys. Based upon his discussions with the Social Security
Administration (SSA), Lillesand stated that Nancy Veillon's January 31,
2006 letters to attorneys Roger Bernstein and Jay Sangerman
representing NSSTA are "inoperative" - a statement Lillesand repeated during
his presentation with SSA executive attorney Ken Brown at the ASNP 2008
Annual Meeting.
SSP's panel discussion about the secondary markets
included NASP Executive Earl Nesbitt, Stephen Harris and Rhonda Bentzen.
Other SSP educational presentations included a legislation and litigation update, settlement planning case studies, and advice about
Internet marketing.
Stetson Special Needs Trust X (SSNTX)
- Throughout its 10 year history, the Stetson Conference has been
recognized as the leading special needs trust (SNT) knowledge forum in
the United States. Most of the speakers are members of either the
Academy of Special Needs Planners (ASNP) or the Special Needs Alliance (SNA). For structured settlement professionals, the 2008 Stetson program titled "The Basics of Special Needs Trusts"
offered analyses of several important settlement planning topics and
included two presentations specifically focusing on structured
settlements:
- Texas Attorney Pi-Yi Mayo spoke about the January 31, 2006 Social Security Administration (SSA) letters to attorneys Roger Bernstein and Jay Sangerman as well as the application of the Deficit Reduction Act of 2005 (DRA)
to structured settlements used to fund special needs trusts; and
- Leo Govoni provided "An Economic Analysis of Structured Settlements".
Structured Settlement Knowledge Leadership Conference (SSKLC) - Focusing on the "needs and best interests of consumers",
the first Structured Settlement Thought Leadership Conference,
sponsored by J.G. Wentworth, was designed to bring together knowledge
leaders who are "redefining structured settlement roles and processes".
The Leadership Conference objective was to provide an educational
platform and open forum dedicated to growing and improving the
structured settlement market. In addition to four panel discussions and
two individual presentations, the Leadership Conference featured a
brainstorming session to improve the structured settlement process for
plaintiffs based upon the subjects discussed in prior sessions. The
panel discussions addressed the economic life cycle of a personal injury claim identified by Adam Scales in his 2002 Wisconsin Law Review article titled "Against Settlement Factoring? The Market in Tort Claims has Arrived". One result of the Leadership Conference was the subsequent 2008 structured settlement survey conducted by J.G. Wentworth.
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