Beyond Structured Settlements

Disability Milestone and Special Olympics

This weekend represents a momentous occasion for the disability community - the simultaneous celebrations of the Americans with Disabilities Act (ADA) 25th Anniversary and the Opening Ceremony of the Special Olympics in Los Angeles.

Americans with Disabilities Act

The ADA is a federal civil rights law enacted in 1990 that prohibits discrimination based upon mental and/or physical disability. Among its many provisions, the ADA prohibits disability discrimination in employment, in access to public entities, transportation, accommodations, and facilities as well as mandating functionally equivalent telecommunication services.

Except in an historical context, the immensely positive impact of the ADA on the lives of people with disabilities, including structured settlement recipients, is difficult to comprehend. Today marks the 25th anniversary of the ADA's enactment. Celebrations are both understandable and justified.

The National Structured Settlement Trade Association (NSSTA) supports the disability community with its sponsorship of the American Association for People with Disabilities (AAPD). Eric Vaughn, NSSTA's Executive Director, is a Director and Treasurer of the AAPD.

Cornell University's Employment and Disability Institute (EDI) provides one example of how far knowledge, policies and practices have advanced since the ADA was enacted to enhance the opportunities for people with disabilities. Among other resources and course offerings, EDI maintains a resource-rich website that "helps policy makers, service providers, researchers, educators, the media, and people with disabilities and their families find relevant and timely statistics about disability."

Special Olympics and Paralympics

Following last night's nationally televised Opening Ceremony, more than 6500 athletes with intellectual disabilities from 177 countries will compete in 25 sports thru August 2 in greater Los Angeles as part of the 2015 Special Olympics World Games.

Started as a back yard day camp in 1962 by Eunice Kennedy Shriver, the Special Olympics now represent the world's largest sports organization for individuals with intellectual disabilities. Unlike the Paralympics, which is primarily for athletes with physical disabilities focused on elite competition, Special Olympics is as much, or more, about participating as winning.

The Special Olympics website "welcomes all athletes with intellectual disabilities (age 8 and above) of all ability levels to train and compete in 32 Olympics-type sports." Special Olympic participation also encourages family, sponsor, coach and event volunteer participation in addition to the athletes themselves. Millions of people worldwide now participate in Special Olympic programs helping to form a core component of special needs communities more generally.

Paralympics, by comparison, include athletes from six primary disability categories, according to the Special Olympics website: "amputees, cerebal palsy, intellectual disabilities, visually impaired, spinal injuries and Les Autres (French for 'the others', a category that includes conditions that do not fall into the categories mentioned before)."  To participate in Paralympic Games athletes must also meet qualifying standards.

Most structured settlement recipients suffer from physical, as opposed to intellectual, disabilities and therefore do not qualify to participate as athletes in the Special Olympics. Instead, personal physical injury victims potentially qualify for, and many participate, in the Paralympics. Although not a structured settlement recipient himself, the late Randy Snow represented one inspirational Paralympic participant. In a 2008 S2KM interview, Randy shared his personal Paralympic experience.

This week, however, the Special Olympic World Games occupy center stage with national television coverage. Take time to admire the performances of these athletes. We can all learn from their challenges and experience. As the Special Olympics website reminds us: “excellence is personal achievement, a reflection of reaching one’s maximum potential – a goal to which everyone can aspire.”

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

Person-Centered Planning

Although personal injury settlement planning (settlement planning) might be suggestive of "person-centered planning", (PCP) the latter term has a special meaning for disabled persons.

Surprisingly, PCP is rarely, if ever, specifically discussed during educational conferences sponsored by structured settlement, settlement planning - or even special needs - professional associations.

This omission cannot be blamed on a lack of available resources. For example, Cornell University's Employment and Disability Institute features a PCP Education Site with an overview of the PCP process, a self-study PCP course, and a compendium of downloadable resources. See also: Cornell Disability Studies, Research, Statistics.

An alternative explanation for settlement planners and structured settlement consultants might be the assumption that once a settlement occurs, and/or a structured settlement is funded, professional responsibility for matching funding with actual needs shifts to settlement trustees, guardians, special needs attorneys and social workers.

Even accepting this explanation, however, shouldn't settlement planning incorporating structures consider, or at least be consistent with, PCP and its purposes?

Of equal importance, doesn't PCP provide an alternative, educational perspective for settlement planners and structured settlement professionals to re-think such fundamental industry issues as: "know your client", "needs analysis", "best practices", "industry standards" and "product suitability", as well as "professional qualifications, responsibility and accountability"?

Frank Johns' PCP Paper

For settlement planners and structured settlement consultants seeking additional PCP background, insights and analysis, S2KM recommends a Frank Johns' paper titled "Person-Centered Planning in Guardianship: A Little Hope for the Future." Johns' 2012 paper was published in the Utah Law Review (ULR) and delivered during the Third National Guardian Summit.

Johns, a former NAELA President and Editor in Chief of the NAELA Journal, has been a popular speaker at many elder law, special needs and special needs planning conferences.

Among his contributions to structured settlements, Johns delivered a paper titled "Request for Proposals: Connecting Structured Settlement Professionals with Special Needs Attorneys" at the SSP 2008 Annual Conference. Section 6.02[2] ("Selecting Structured Settlement Consultants") of "Structured Settlements and Periodic Payment Judgments" (S2P2J) features and summarizes his SSP paper.

Johns premises his PCP paper upon an indictment of guardianship in the United States:

• "[W]here vulnerable citizens, those mentally ill or mentally or physically challenged, have been condemned to a perverse legal system that protects property over the person"; and
• Which "is well noted for a deep-rooted culture of paternalistic practices that rarely pursue the wants and needs of adjudicated incompetent persons."

By contrast, following the 2006 passage of Article 12 of the United Nations Convention on the Rights of Persons with Disabilities, many other countries have replaced guardianship with "supported decision making" (a PCP-related concept) "meaning that there is no judicial process or legal intervention that removes a person’s individual rights."

Johns views PCP as a solution to the problems of guardianship in the United States. His paper describes how PCP can be incorporated into guardianship and examines the extent to which the Uniform Guardianship and Protective Proceedings Act (UGPPA) and some states have incorporated PCP into guardianship.

Although he identifies several PCP definitions, including one published by CMS, Johns concludes there is no standard PCP definition. "According to experts in the field," Johns writes, PCP "is described more as a spectrum of processes based on one general philosophical background."

Compared with traditional "system-driven" guardianship, Johns views PCP as applying the principle of self-determination and establishing a vision based upon the disabled person's abilities and strengths. By contrast, Johns states, "conventional service models operate for, not with, the individuals being served" with support decisions "often focusing on deficits and negative behavior which can create a disempowered mindset."

Johns' paper describes three PCP tools with accompanying case studies:

• Important To vs. Important For Sorts - Important To "includes what people are saying with words and behavior" compared with Important For which "includes what keeps individuals safe and healthy and a valued member of community."
• Relationship Maps - which offer "an effective way of finding out who to talk to and who to listen to when a guardian is making decisions."
• Working vs. Not Working Analyses - which help to "determine what needs to change, what needs to stay the same, and what should be enhanced."

To effectively implement PCP for guardians, Johns recommends: 1) accountability and monitoring; and 2) better training and education.

This same PCP prescription might also enhance and improve structured settlement and personal injury settlement planning.

Cornell Disability Studies, Research, Statistics

Two publications have recently highlighted the important role of Cornell University in expanding disability studies, research and statistics.

Wall Street Journal Article

A March 5, 2014 Wall Street Journal (WSJ) article (subscription required), titled "Disability Studies: Hot Topic on Campus" and written by Melissa Korn, features Cornell University's School of Industrial and Labor Relations which created a formal disability studies concentration in 2009.

Offering eight courses with more than 300 students, the Cornell program includes classes on disability and employment policies, disability law and a writing seminar on "intersections of disability identity in the law, workplace and society".

Cornell's disability studies program is associated with the Cornell University Employment and Disability Institute (EDI) which "advances knowledge, policies, and practices to enhance the opportunities of people with disabilities through projects, training, technical assistance, research and publications," according to its website.

"Disability Considerations in HR Policy and Practice," one of the Cornell disability studies courses featured in the WSJ article, "addresses the strategic advantages of employing people with disabilities, such as helping companies appeal to new markets."

In addition to guest speakers from the federal government and public companies, reading assignments for this course include academic journals and business magazines. Example topics for final papers: "the impact of the aging workforce on employers, how companies can accommodate returning veterans and what challenges multinational firms might face in implementing nondiscrimination regulations across borders."

The WSJ article correlates this surge in academic interest, in part, to new hiring guidelines for federal contractors with a goal for people with disabilities to represent seven (7%) percent of the employees in every job group.

NAELA eBulletin

The NAELA eBulletin is a weekly newsletter for members of the National Academy of Elder Law Attorneys written by Professor Kim Dayton, Professor Rebecca Morgan, and Elizabeth P. Allen, JD, LLM.

Amplifying the WSJ disability article, the most recent NAELA eBulletin features Disability Statistics, a resource-rich website created and maintained by Cornell's EDI that "helps policy makers, service providers, researchers, educators, the media, and people with disabilities and their families find relevant and timely statistics about disability."

Part of EDI's "Disability Statistical Research" project, the Disability Statistics website is funded by the U.S. Department of Education National Institute on Disability and Rehabilitation Research (NIDRR).

NIDRR, a component of the U.S. Department of Education's Office of Special Education and Rehabilitative Services (OSERS), describes itself as "the main federal agency that supports applied research, training and development to improve the lives of individuals with disabilities." In addition, the federal government maintains this website for people with disabilities.

Upcoming Events - Structured settlement professionals and settlement planners interested in disability community developments should make note of these upcoming events:

• March 18 - American Association of People with Disabilities (AAPD) Leadership Gala - open to non-members.
• March 27-29 - Academy of Special Needs Planners (ASNP) Annual Conference - open to non-members.
• May 15-17 - NAELA Annual Meeting - members only.

Prior S2KM blog posts profiling disabled individuals who have achieved special lifetime accomplishments:

• The Kyle Walsh Story
• Interview with the late Randy Snow