Beyond Structured Settlements

Structured Settlements in 2010 - 2

Beginning in 2004, S2KM has utilized this blog ("Beyond Structured Settlements") and related web 2.0 publications to report and analyze strategic developments impacting the structured settlement and special needs settlement planning (aka settlement consulting) industries.

Featuring industry leaders, commentators and professional association conferences, S2KM has attempted to highlight how legal and technology changes are redefining the traditional (pre-2001) structured settlement market including structured settlement public policy as well as structured settlement business standards, business practices and business models.

From S2KM's perspective, the following categories, people and developments defined the structured settlement and special needs settlement planning industries in 2010:

Professional associations

• S2KM attended seven professional educational conferences during 2010 which addressed structured settlement and/or special needs settlement planning issues:
  • National Structured Settlement Trade Association (NSSTA) - 2
  • Society of Settlement Planners (SSP)
  • National Association of Settlement Purchasers (NASP)
  • National Alliance of Medicare Set-Aside Professionals (NAMSAP)
  • National Academy of Elder Law Attorneys (NAELA)
  • Academy of Special Needs Planners (ASNP)
• As a general observation, all of these conferences were valuable and complementary. For S2KM's 2010 (plus historical) conference reports, see S2KM's structured settlement wiki.
• SSP, NASP and NAMSAP deserve special recognition for their 2010 strategic educational discussions featuring industry leaders, commentators and critics who offered alternative perspectives for improving and growing the structured settlement and special needs settlement planning markets.
• By comparison, NSSTA remains reluctant to openly discuss strategic industry issues or to include alternative perspectives in their educational programs. More positively, NSSTA representatives and members increasingly attend and speak at non-NSSTA structured settlement and special needs settlement planning conferences.
• NAELA's educational conferences are noteworthy because they regularly feature sections or entire programs titled "unprograms". NAELA's unprograms are moderated group discussions about specific topics. NAELA's 2010 Special Needs Summit included six separate one hour unprograms with a concluding unprogram wrap-up session. One example of a 2010 NAELA unprogram was titled "Collaboration Opportunities for Special Needs Attorneys and Financial Planners".

Industry leaders

• NSSTA promoted Eric Vaughn, who previously served as NSSTA's lobbyist, to replace Joseph Ricci as NSSTA's new Executive Director effective July 1, 2010. Peter Arnold, previously NSSTA's Marketing Director, was similarly promoted to serve as NSSTA's Associate Executive Director. NSSTA's Board of Directors elected Michael Kelly as its 2010 President and Dan Finn as its President-elect. NSSTA honored Congressman Peter Stark during its Annual Meeting as its 2010 Legislator of the Year. NSSTA also gave special recognition to Karen Meyers and Joseph Bornstein for their contributions to NSSTA's CSSC and NSSTAPAC programs respectively..
• SSP elected Jason Lazarus as its President for 2010-11 and Charles Schell as Vice President. SSP honored Richard Risk with the designation of "life member" for his contributions to SSP and the settlement planning industry. Joseph Tombs continues as Director of SSP's RSP certification program.
• NASP named Matthew Bracy as its new President succeeding Robin Shapiro. Earl Nesbitt continues as NASP's Executive Director.
• NAMSAP elected Michael Westcott as its President.
• NAELA honored Dick Traum as the first recipient of NAELA's Special Needs Leadership Award. Traum is the founder and CEO of Achilles International, a non-profit organization providing community support for athletes with disabilities with members in more than 70 countries.
• Amy Palmiero-Winters, ultra-marathoner and lower-leg amputee, was named during 2010 as the winner of the 2009 James E. Sullivan Award given annually to the top amateur athlete in the United States.

Industry commentators

• For the past several years, Robert Wood has been the preeminent tax commentator and author for the structured settlement and settlement planning industries. Wood's publications appear on the Wood & Porter website.
• During 2010, Jeremy Babener emerged as an important new structured settlement tax commentator and author specializing in public policy and proposing an expanded structured settlement tax subsidy. In addition to authoring several structured settlement articles for tax and legal journals, Babener participated as a featured speaker at both the SSP and NASP 2010 Annual Meetings and authored two blog posts for S2KM during 2010. Babener discussed his structured settlement writing (accessible on S2KM's structured settlement public policy wiki and Babener's Tax Structuring website) in this 2010 S2KM interview.
• Additional authors who wrote and published 2010 legal articles about structured settlement and special needs settlement planning issues included: Daniel Hindert, Matt Garretson, Sylvius von Saucken, Peter Wayne, Mark Popolizio, Gregg Polsky and Brant Hellwig.
• Both the Legal Broadcast Network and Ringler Radio continued to produce and distribute podcasts featuring structured settlement commentators during 2010.
• An increasing number of structured settlement and special needs settlement planning professionals published blogs during 2010 joining industry blogging pioneers such as John Darer, Mark Wahlstrom, Matthew Bracy and Jack Meligan.
• Incisive Media published two new updates (Release 47 and Release 48) for "Structured Settlements and Periodic Payment Judgments" during 2010.

Legislation

• Both the Patient Protection and Affordable Care Act (Health Care Reform) and the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) redesign the legal environment in which the structured settlement and personal injury settlement planning markets operate.
• Among the anticipated strategic consequences of health care reform:
  • An estimated 16 million more Medicaid participants - and therefore:
  • More special needs trusts;
  • More special needs attorneys;
  • More structured settlement annuities payable to trustees.
• Dodd-Frank re-writes federal banking law and creates a new Bureau of Consumer Financial Protection. A key question, as yet unanswered, is whether the sale and/or purchase of structured settlement annuities constitutes a "financial product or service" under Dodd-Frank requiring regulatory supervision by the Bureau.

Regulations

• The United States Department of Treasury held a public hearing on February 23, 2010 focused on proposed new regulations for Internal Revenue Code section 104(a)(2). The proposed regulations, if enacted, would:
  • Eliminate the requirement that damages be based on “tort or tort type rights” in order to qualify for the section 104(a)(2) tax exclusion, and
  • Incorporate 1996 legislation requiring that personal injuries and sickness damages be “physical” in order to qualify for the section 104(a)(2) tax exclusion.
  • A subsequent S2KM interview featured John McCullough and Richard Risk, two of the structured settlement industry members who spoke at the hearing.
• The Centers for Medicare and Medicaid Services (CMS) continued to issue administrative guidance during 2010 for enforcement of the Medicare Secondary Payer (MSP) Act of 1980 and the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA) reporting requirements for insurers. Featured discussions during the NAMSAP 2010 Annual meeting highlighted:
  • The increasing importance and complexity of the MSP statute for all personal injury stakeholders;
  • The need for these personal injury stakeholders (and their professional associations) to cooperate politically and educationally;
  • The challenges of integrating structured settlements, including rated ages, with Medicare set-aside arrangements (MSAs) in the context of health care reform, CMS MSA regulations and related judicial rulings;
  • The evolving business models, claim management strategies and professional skill sets which are now emerging to address these challenges.

Case law

• The Spencer v. Hartford class action lawsuit which settled in 2010 represents one of the most important legal developments in the history of the structured settlement industry.
• Hartford's gross settlement payment of $72.5 million represents 4.5% of total premium dollars Hartford used to purchase structured settlement annuities for class members from January 1, 1997 to June 7, 2010.
• Among the plaintiffs allegations:
  • Hartford and its attorneys, brokers and agents violated the Racketeer Influenced and Corrupt Organizations Act (RICO) and committed common law fraud in structuring its settlements.
  • Hartford's structured settlements were priced so Hartford retained 15% of the value of the structured settlements.
  • Hartford and its attorneys, brokers and agents misrepresented structured settlements including explicit or implicit reference to:
    • The "cost" of the annuity or structured settlement or portion of the settlement being structured; and/or
    • The "value" of the annuity or structured settlement or portion of the settlement being structured.
• Hartford, which stopped writing new structured settlement business in 2009, denied the allegations.

Technology

• Despite the accelerating technology advances revolutionizing society generally, the structured settlement and special needs settlement planning industries have been slow to study and incorporate these advances into their educational programs and business models.
• The best industry-sponsored technology education programs during 2010 were offered by Mark Miller during a NAELA webinar and Harry Margolis at the ASNP 2010 Annual Meeting. Both presentations provided introductory overviews of web 2.0 and including recommendations for integrating specific social networking tools into special needs legal practices.
• NSSTA initiated a NSSTA blog during 2010 and offered an educational program about Internet marketing during its 2010 Fall Education program.

Public policy

• Both SSP and NASP featured specific discussions and presentations about structured settlement public policy during their 2010 Annual Meetings. The discussions included industry commentators representing diverse viewpoints and priorities.
• Jeremy Babener followed his 2009 paper debunking industry myths concerning "structured settlement dissipation studies" with several 2010 articles and papers addressing structured settlement public policy issues. Babener's public policy writing is featured on S2KM's structured settlement public policy wiki.
• Release 47 of "Structured Settlements and Periodic Payment Judgments" re-examined several structured settlement public policy issues related to single claimant 468B funds, structured settlement factoring transactions, dissipation by personal injury victims, the Deficit Reduction Act of 2005, special needs trusts and Medicare set-aside arrangements.
• In a 2010 Boston College Law Review article, professors Gregg Polsky and Brant Hellwig challenged the application of any structured settlement tax benefit for deferring attorney fees or payments to non-physically injured tort plaintiffs under general common law tax principles.

Business standards and practices

• The Spencer v. Hartford case raises many issues about structured settlement business standards and practices which require greater education and analysis if the primary market expects to improve and grow. For example;
  • Is the primary structured settlement market capable of self-regulation?
  • Why shouldn't key elements of the state structured settlement protection statutes (judicial approval; best interest test; compensation disclosure) be applied to primary market transactions?
  • As an additional requirement, or as an alternative, why haven't plaintiff attorneys and plaintiff consultants insisted upon a claimant's written informed consent before entering into a structured settlement?
  • Why haven't the SSP's Standards of Professional Conduct received more public discussion and analysis within the structured settlement industry?
• "Cash now" advertising represents one of the most highly criticized secondary market business practices. Although this practice continues to exist, NASP took an important educational step during its 2010 Annual Meeting by highlighting this issue and inviting secondary market critics to participate in the discussion.

Business models

• While other segments of, and products within, the special needs settlement planning market have expanded and improved in recent years, the structured settlement primary market in general has stagnated and retrenched.
• During 2010, however, representatives of the primary structured settlement market increasingly recognized their interdependency, and interacted, with other settlement planning professionals and professional associations such as special needs attorneys, life care planners, Medicare set-aside professionals and secondary structured settlement market participants.
• Future industry improvement and growth will require even greater appreciation and identification of shared interests as well as expanded implementation of shared political strategies, educational programs and business models.

Prior S2KM annual reports about the structured settlement industry and reports about industry association conferences are available on S2KM's structured settlement wiki.

Structured Settlements in 2008 - 2

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.

NSSTA 2008 Fall Meeting - 1

The National Structured Settlement Trade Association (NSSTA) hosted its 2008 Fall Regional Meeting at the Grand Hyatt Hotel in San Francisco from October 22-24.

Other structured settlement bloggers, including Mark Wahlstrom of the Legal Broadcast Network, have already published online reports about the NSSTA Fall meeting.  Like Mark, S2KM's blog author, Patrick Hindert, is an associate NSSTA member. Unlike Mark, this author did not attend any of NSSTA's educational programs.

S2KM did attend four NSSTA committee meetings and the NSSTA opening reception. NSSTA appropriately restricts information sharing from NSSTA committee meetings. This S2KM blog post offers S2KM's general 2008 observations about NSSTA as well as recommendations for NSSTA to consider in 2009. Additional S2KM blog posts about NSSTA will follow.

As Mark Wahlstrom reports, there was a testiness at the NSSTA 2008 Fall meeting. Mark characterizes NSSTA's mood as "fear and loathing" with an acknowledgement to the late Hunter S. Thompson. 

Part of Mark's characterization might result from the age of NSSTA's leadership. In 20 plus years of attending NSSTA meetings, this author cannot remember an older group of NSSTA conference attendees. The entire generation of NSSTA leadership is fast approaching retirement. They represent the history, not the future, of structured settlements.

Part of Mark's characterization might result from appropriate industry concerns about the financial strength of AIG and other structured settlement annuity providers.  For a "bullish" report on the structured settlement industry, see the comments of Jack Meligan and Michael Upchurch in S2KM's blog report about the NASP 2008 Annual Meeting.  See also: S2KM's AIG structured settlement wiki.

For NSSTA and the structured settlement industry to survive and grow, the best of NSSTA's current leadership should proactively assume a transitional leadership role.  Transitional leadership responsibilities should include:

• Strategically analyzing the current structured settlement market - as opposed to living historically in the old (circa 1986) structured settlement market.
• Identifying and engaging the leading settlement planning knowledge experts (many of whom are not NSSTA members) in strategic and public conversations about the future of structured settlements.
• Recruiting and empowering a new generation of structured settlement and settlement planning leaders within a new business model (settlement planning) as opposed to the dying structured settlement business model (claim management).

Based upon this author's limited participation in the NSSTA 2008 Fall meeting, NSSTA's leaders still don't understand or address the strategic issues impacting their industry.  These strategic issues and priorities include:

• Understanding the differences between a claim management structured settlement business model and a settlement planning structured settlement business model;
• Understanding how IRC section 5891 and the 46 state protection statutes have changed structured settlements and organizing a positive and proactive strategic industry response;
• Identifying and addressing the legislative and regulatory changes needed to effectively integrate structured settlements with special needs trusts and Medicare set-aside arrangements;
• Planning whether, how and when the structured settlement industry will transition its knowledge and processes into Internet-based platforms, tools and resources.

For additional S2KM reports about NSSTA, see S2KM's structured settlement wiki and upcoming S2KM blog posts.

Web 2.0 Update

S2KM's blog encourages collaborative thinking and commentary about the impact of the Internet on four overlapping markets:

• Structured settlements;
• Personal injury settlement planning;
• Special needs planning; and
• The secondary insurance markets.

S2KM's coverage includes information and observations about industry leaders and trade associations as they transition to the Internet - especially their use of web 2.0 tools to communicate, learn and collaborate.

Several notable web 2.0 developments have occurred in 2008 within the vertical markets and topics S2KM follows.

Special Needs Blogs - From a web 2.0 perspective, S2KM views elder law and special needs attorneys as advanced knowledge workers using outdated tools. Their traditional knowledge training (examples: law schools; CELA); values (example: sharing knowledge) and tools (examples: hardcopy textbooks; F2F conferences; digital publishing; listservs) are strong and positive for web 2.0.  To date, however, these lawyers and their associations have created almost no web 2.0 imprint or impact. Transition indicators exist - especially web 2.0 conference discussions and industry leaders emerging as bloggers.  The special needs bloggers are important for several markets because they address issues and laws for disabled persons. S2KM subscribes to four special needs legal blogs (as of July 7, 2008) each of which is new and/or revised in 2008:

• David Lillesand - Lillesand was a featured speaker at the SSP and ASNP 2008 Annual Meetings where he addressed structured settlement Medicaid issues. Recent Lillesand blog posts:
  • New POMS for special needs trusts - Atlanta
  • Relationship of SSDI, SSI, Medicare and Medicaid
  • How SSA decides and processes a disability claim
  • Lillesand's ASNP presentation
  • Special needs trust Q and A booklet
• Patti Dudek - Dudek is member and frequent speaker at NAELA and ASNP. Dudek participates in NAELA's member-only listserv. From a web 2.0 perspective, a listserv is a good tool to pre-launch and link wikis, blogs, podcasts and concept maps. Recent Dudek blog posts:
  • The Case for Inclusion 2008 community rankings
  • Proposed changes to the Social Security appeals process
  • The ADA Amendments Act
  • Long-term care case
• Diedre Wachbrit - With Harry Margolis and Vincent Russo, Wachbrit is a founder of, and featured speaker at, the Academy of Special Needs Planners (ASNP). Recent Wachbrit blog posts:
  • New special needs treatise
  • Government services harder to get
  • Autism studies
  • MetLife survey - assisted living costs

• Frank Johns (added July 7, 2008) - Johns is a leading writer and speaker about elder law, special needs and settlement planning issues. Johns also serves as the current editor of the NAELA Journal.  Recent Johns' blog posts:
  • Freedom and independence with a twist
  • New Medicaid restrictions
  • Divorce among the elderly
  • Four core values

• John Campbell (added July 14, 2008) - John Campbell, a leading special needs attorney who writes about structured settlement and settlement planning issues, has published a new blog.    John has also added valuable commentary to other blogs.  See, for example, John's comments about S2KM's January 16, 2008 blog post titled "Medicare, Medicaid and SCHIP Extension Act of 2007". Congratulations and good luck to John and other special needs bloggers.

LBN Developments

• The Legal Broadcast Network (LBN) has introduced Tim Butler as its new CEO and announced a successful LBN venture capital funding.
• According to LBN Chairman Mark Wahlstrom: "You are going to see a major expansion in our shows, channels, commentators and offerings, not the least of which is going to be a substantial build out of The Settlement Channel and it's content and sponsors".
• Wahlstrom also announced LBN's formation of Speaking of Settlements, which Wahlstrom characterizes as "a complete professional network in which any settlement professional, lawyer or legal professional can fill out a profile for free, start a blog, post video or audio content or create discussion boards and rooms".

Luis Suarez' Article

• Luis Suarez, a Knowledge Management (KM) consultant in the IBM Global Business Services division, is a leading KM blogger and commentator. In 2006, S2KM reported on Suarez'  visit to Cincinnati and the resulting KM discussions with Denham Grey.
• Earlier this week, a Suarez article, titled "I Freed Myself from Email's Grip", was featured in the New York Times.
• Suarez' blog provides commentary and links to the article.
  • Suarez' conclusion: "As a communication tool e-mail can be a good thing; however, as a collaboration tool it lacks some of the most significant elements from any kind of collaboration: openness, transparency, taking responsibility & ownership, co-authorship, co-llaborate ..." (Suarez' emphasis).
  • Suarez' alternative: Instead of individual email responses, Suarez has substituted instant messages, blogs, wikis - and telephones including skype.

S2KM 2008 Wikis - S2KM recommends wikis (public and private) as powerful, simple and inexpensive web 2.0 tools for Internet-based knowledge workers. S2KM has continued to publish and update public wikis during 2008 including:

• Web 2.0 for Lawyers - S2KM's Web 2.0 for Lawyers Wiki was updated for the 2008 NAELA Symposium - and featured in a 2008 LBN podcast interview with Scott Drake.
• Structured Settlement - S2KM published the Structured Settlement Wiki on March 24, 2008. 

Selected S2KM blog posts (2004-2008) about other KM and web 2.0 topics:

• KM and Law
• Legal Blogs and Taxonomies
• Web 2.0 for Lawyers
• Web 2.0 for Lawyers Concept Map
• KM and Structured Settlements
• Concept Maps
• Social Networks
• Introduction to Podcasting

2008 NAELA Symposium - 2

This blog post looks at the National Academy of Elder Law Attorneys (NAELA) and elder law certification (CELA) from the perspective of knowledge management (KM) and web 2.0. S2KM's prior blog post (2008 NAELA Symposium-1) featured S2KM's "Web 2.0 for Lawyers" wiki  plus a NAELA-specific podcast interview by Scott Drake for the Legal Broadcast Network (LBN) with Patrick Hindert, S2KM's Managing Director and blog author.

Knowledge Management (KM) means organizing knowledge to achieve productive work, competitive advantage and business value. KM provides a professional discipline to personalize advancing Internet technologies and to help knowledge workers understand and manage personal, organizational and industry knowledge.

Here are some recommended KM learning resources for NAELA members:

• Wikipedia definitions for
  • Knowledge management
  • Elder law
• Google searches for
  • Knowledge management
  • Elder law
  • Elder law wikis
  • Elder law blogs
  • Elder law podcasts
• Denham Grey's
  • KM wiki
  • Knowledge Sharing and Social Software
• Web 2.0 for Lawyers Concept Map - Dr. Barbara Bowen
• Selected blogs featuring KM and law
  • Lessig 2.0 - Lawrence Lessig
  • DennisKennedy.com - Dennis Kennedy
  • Law X.0 - Ian Best
• S2KM blog posts
  • Web 2.0 for Lawyers
  • Concept Maps
  • Introduction to Podcasting
  • KM and Law
  • KM and Structured Settlements

From a traditional (pre-web 2.0) KM perspective, NAELA represents an "advanced" and knowledge-intensive community of practice. NAELA's community knowledge is displayed on the NAELA website as well as the website of the National Elder Law Foundation (NELF) which sponsors and manages the Certified Elder Law Attorney (CELA) program.

In addition to the CELA program and the several hardcopy elder law textbooks CELA recommends as learning resources, NAELA captures and distributes knowledge in many formats including:

• NAELA's website - an excellent example of a web 1.0 website;
  
• NAELA conferences - including hardcopy handouts, CD Roms, and audio tapes;
• NAELA Journal - an academic journal featuring articles by leading elder law attorneys and professors;
• NAELA News - a magazine featuring additional articles by leading elder law attorneys and professors;
• NAELA Listserv - an online tool for NAELA members to communicate about substantive legal issues.  

Question: what is striking about NAELA's "advanced" knowledge-intensive community of practice?

Answer: NAELA currently does not offer its 4400 members any:

• Web 2.0 resources; or
  
• Web 2.0 applications; or
• Web 2.0 learning strategies.  

NAELA's web 2.0 shortcomings are shared by almost every other professional trade association S2KM follows. AAPD, featuring two association blogs, represents the singular exception that proves the rule. Because of NAELA's strong knowledge foundation and orientation, however, this author predicts NAELA and its professional members will become successful adapters of web 2.0 tools and technologies.  It is time for NAELA to begin this transition.

2008 NAELA Symposium - 1

The National Academy of Elder Law Attorneys (NAELA) celebrated its 20th Anniversary May 15-18 at the Hyatt Regency Resort in Maui. Established in 1987, NAELA is a non-profit organization consisting of 4400 members in the United States, Canada, Australia and the United Kingdom.

NAELA's mission "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 assists lawyers, bar associations and others who work with older clients, persons with disabilities and their families.

Prior to the 2008 NAELA Symposium, the National Elder Law Foundation (NELF) offered an Advanced Elder Law Review Course for NAELA members preparing to take the Certified Elder Law Attorney (CELA) examination.

This author attended the CELA review course and was scheduled to speak about "Web 2.0 for Lawyers" at the NAELA Symposium.  Unfortunately, a family emergency required cancellation of the NAELA in person "Web 2.0" discussion.  As a substitute educational resource, however, S2KM's "Web 2.0 for Lawyers" wiki is published online featuring a NAELA-specific podcast interview by Scott Drake for the Legal Broadcast Network (LBN) with S2KM's Managing Director, Patrick Hindert.

A subsequent S2KM blog post (2008 NAELA Symposium-2) will analyze NAELA and CELA from a knowledge management (KM) and web 2.0 perspective.

For prior S2KM blog posts about NAELA, see:

• 2007 Advanced Elder Law Institute
• 2006 NAELA Advanced Institute

For prior S2KM blog posts about structured settlement stakeholder associations more generally, see S2KM's Structured Settlement Wiki.