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.”

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.