Beyond Structured Settlements

NAELA Journal - Recent ACA Articles

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

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

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

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

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

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

Scott Solkoff's NAELA Journal Report

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

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

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

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

ACA health insurance policies now must include all these features.

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

Medicaid and SNTs

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

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

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

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

Medicare

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

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

Tax and Financial Planning

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

Personal Injury Settlements

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

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

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

Strategic Impact?

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

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

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

E. Spencer Ghazey-Bates NAELA Journal Warning

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

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

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

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

Ghazey-Bates is not alone in predicting some negative consequences for traditional elder law (and special needs law) practice as a result of the ACA. David Lillesand, for example, observed during the ASNP 2012 annual conference : "The need for self-settled (first party) special needs trusts has decreased (except when a beneficiary requires long term institutional care) because the ACA provides better insurance options than Medicaid for many persons with pre-existing medical conditions including personal injury victims."

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

Lessons To Be Learned

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

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

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

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

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

ASNP 2015 Annual Conference

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

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

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

ASNP 2015 SPEAKERS AND TOPICS

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

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

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

SSA New Trust Guide

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

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

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

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

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

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

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

ASNP Webinar Series

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

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

Settlement Planning vs. Special Needs Planning

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

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

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

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

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

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

NSSTA 2014 Fall Educational Conference

Although David Ringler was unable to attend the National Structured Settlement Trade Association (NSSTA) 2014 Fall Educational Conference October 29-30 in La Jolla, California, he had an apparent impact. Ringler, NSSTA's first president, previously re-stated his original vision for NSSTA during NSSTA's 25th anniversary celebration in 2011:

"Although we do need to constantly be on the watch for legislative change, I still believe having 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. I have called it a common “talk table”, although I agree that is not exactly a very elegant term. If we can continue this tradition, there is no problem we cannot overcome."

Many industry participants, including some NSSTA members, have questioned whether NSSTA has lost sight of this original purpose and tradition. 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. As one result, structured settlement industry participants with alternative issues, viewpoints, beliefs and educational interests have founded two other national structured settlement associations: the National Association of Settlement Purchasers (NASP) in 1996 and the Society of Settlement Planners (SSP) in 2000.

NASP and SSP Participation

Perhaps responding to Ringler's clarion call, NSSTA opened its members-only educational program in La Jolla by inviting NASP President Patricia LaBorde and SSP President Neil Johnson to speak.

LaBorde was featured on a Secondary Market Panel, moderated by John McCulloch, which also included Stephen Harris and Patrick Hindert as panelists. McCulloch's questions targeted primary market concerns such as the prevalence of secondary market transfers, consequences of transfer company advertising and secondary market discount rates. The resulting discussion captured the audience's undivided attention and hopefully will result in expanded educational dialogue between NSSTA and NASP to include shared political and business interests.

Johnson and current NSSTA President Kevin Silo jointly addressed "Industry Challenges", a panel discussion moderated by NSSTA President-elect Michael Goodman. Repeating portions of his SSP 2014 keynote speech, Johnson proposed the following solutions for achieving industry unity: 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.

Generational Change and Challenges

NSSTA and the primary structured settlement market face multiple challenges (see below) - perhaps none greater than succession. What new generation of distributors, or distribution channel(s), will emerge (and when) to replace and build upon the accomplishments of the pioneering generation (now in their 60s and 70s) who originated the structured settlement market in the late 1970s?

In addition to generating more than $140 billion of annuity premium, the legacy of NSSTA's retiring generation includes enactment of the existing structured settlement legislative framework: current IRC sections 104(a)(1) and (2) and 130 plus multiple state periodic payment of judgment statutes and (with NASP) enactment of IRC 5891 and the state protection statutes. More recently, however, NSSTA's aging leadership has focused on defense - with "protect and preserve" its principle mantra.

NSSTA attempted to addressed this generational succession issue at its Fall conference by juxtaposing panels featuring past NSSTA Presidents and "Next Generation" brokers. The impression that emerged: NSSTA and the primary market have reached an historic crossroads - with multiple stakeholders, issues and options, but no clear future direction.

Whatever next generation of NSSTA leaders emerges will face several challenges:

• Stagnant growth - Since achieving $6 billion of annual annuity sales in 2001, structured settlement premium growth has stagnated with 2013 sales totaling $5.1 billion.
• Polarized market(s) - NSSTA's leaders have been unable, and/or unwilling, to unify the structured settlement market(s) around such shared interests as: primary market growth; preservation of existing legislation; and consumer protection - which prioritizes maintaining promised periodic payments.
• Alternative business models - Can alternative structured settlement models (traditional defense vs. emerging plaintiff) continue to co-exist and collaborate?
• Complexity - Structured settlements represent a strategic product within the larger and more complex personal injury settlement planning (settlement planning) market.
• Product features - Will Pacific Life's recent private letter ruling encourage structured settlement annuity providers to expand their product offerings to include "equity-indexed" annuities and "hardship conversions"?
• Competition. Within the settlement planning market, the growth and leadership of other product and service providers has increasingly exceeded the growth and leadership of structured settlement participants.
• Success factors. To expand sales within the evolving settlement planning market, NSSTA's leaders must re-think and re-engineer historical success factors - backgrounds and skill sets; educational programs; business models; product enhancements; sales and marketing strategies.

KNOWLEDGE MANAGEMENT

The settlement planning market is knowledge-intense and increasingly Internet-based. To continue, and increase, their historical success within the evolving settlement planning market, NSSTA and its members must improve their knowledge management capabilities. One preliminary step is to identify and evaluate existing strategic knowledge. NSSTA and its members possess three primary types of strategic knowledge:

• Product knowledge - The "Tax Posse", the ACA summary, and even the Non-traditional Products presentation at NSSTA's Fall conference represent good examples of NSSTA's product knowledge. Perhaps more important, and more valuable, than explicit product knowledge, NSSTA members possess tacit (intuitive, experiential) knowledge of how structured settlements work. In the context of the secondary market, however, NSSTA member knowledge of its own product is arguably much weaker, and, therefore, incomplete and less valuable.
• Relationship knowledge - Much of NSSTA's Fall conference related to, and re-enforced, NSSTA's and NSSTA members' 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; 6) MSA administrators; 7) SSP; and 8) NASP. In settlement planning, as in life more generally, it is not what you know but who you know that counts the most.
• Market knowledge - Compared with other settlement planning market segments, NSSTA (and NASP) appear to have developed and maintained more accurate market metrics including quarterly and annual premium and cases in total and for each member product provider. To further expand structured settlements into the settlement planning market, NSSTA and its members might begin to track additional metrics. For examples: what percentage of structured settlements are utilized to fund MSAs, SNTs and settlement trusts more generally. Which categories of structured settlement recipients are most likely to sell payment rights and why?

MARKETING INITIATIVES

NSSTA conference speakers introduced multiple new marketing initiatives including:

• "NSSTA University" - NSSTA's Debbie Sink announced a new "NSSTA University" service whereby NSSTA will partner with any member to secure CE credits for member-sponsored educational seminars or insurance claims departments or law firms.
• CLM Survey Part II - In partnership with CLM Advisors, NSSTA's Marketing Committee summarized CLM Survey Part II (claims adjustors) of an eventual three part survey project. Part I surveyed claims executives. Part III will survey plaintiff attorneys. These surveys provide NSSTA members with valuable marketing tools for discussions with the audiences surveyed.

TOPICS AND SPEAKERS

• Introduction and Welcome - Eric Vaughn.
• Industry Challenges - Michael Goodman (Moderator), Kevin Silo, Neil Johnson.
• Next Gen Brokers - Louis Masry (Moderator), Kristen Chess, Ryan Garrison, Tony Robinson.
• Financial Issues for People with Disabilities - Sally Greenberg and Mark Perriello.
• AAJ Treasurer Elect - Elise Sanguinetti.
• MSA Professional Administration - Tom Adams (Moderator), Marques Torbert, Joe Anderson.
• Affordable Care Act - Jordan Bossler.
• Past NSSTA Presidents - Moderators (Kevin Silo; Eric Vaughn); Jeff Bowers, Len Blonder, Joe Costello, Mal Deener, Dan Durbin, Randy Dyer, Dan Finn, Patrick Hindert, John Machir, Henry Strong.
• Factoring Panel - John McCulloch (Moderator), Stephen Harris, Patrick Hindert, Patricia LaBorde.
• Non-Traditional Products - Erin Muller (Moderator), John Arendt, Ryan Jandreau, Jeff Reinhold, Chris Shumate, Ravi Vaswani.
• American Insurance Association - Peter Foley.
• CLM Survey Part II - Taylor Smith, Susan Clark, Jeff Livingston.
• Tax Posse - John McCulloch, Timothy O'Driscoll, Tom Ronce.
• NSSTA CE News - Erin Muller and Debbie Sink.

Congratulations to NSSTA and conference chairperson Erin Muller for re-establishing NSSTA's tradition of educational programs featuring speakers with multiple viewpoints on industry issues "regardless of beliefs". David Ringler and other structured settlement pioneers should feel gratified - and hopeful for NSSTA's future success.

For S2KM's reports about prior NSSTA educational conferences, see the structured settlement wiki.

Wendie Howland Interview - 2

The increasing number, importance and roles of life care planners represents a significant development impacting several overlapping markets including structured settlements, personal injury settlement planning, special needs planning, and Medicare set-asides (MSAs).

This S2KM blog post continues a three part interview with Wendie A. Howland, MN, RN-BC, CRRN, CCM, CNLCP, LNCC, a nationally recognized life care planning expert, in which Wendie addresses life care planning qualifications, case management, industry standards, and criticism of life care planners among other issues. Link for Part 1.

S2KM: The two most important U.S. based life care planning professional associations appear to be the International Association of Life Care Planners (IALCP) and the American Association of Nurse Life Care Planners (AANLCP). You belong to the AANLCP.

• How many nurses belong to AANLCP?
• Who are/were the pioneers responsible for developing nurse life care planning?

Ms. HOWLAND: Currently, there are roughly 350 AANLCP members. Not all have earned CNLCP certification. Some are LNCP-Cs and CLCPs, and/or nurses without formal life care planning credentials. All full AANLCP members are registered nurses bound by the ANA Scope and Standards of Nursing Practice and the nurse practice acts of our respective states. Some CNLCPs and RN CLCPs are not AANLCP members. There are also some associate AANLCP members who are not RNs. AANLCP has some Canadian members who are bound by their own nurse practice act.

These excerpts from the AANLCP Core Curriculum for Nurse Life Care Planning (2013) highlight some of our profession's pioneers:

• Lillian Wald - "In the early 1900s, Lillian Wald promoted the term 'public health nurse,' expanding nursing practice to encompass employment, recreation, health education, and sanitation....By the 1940s, the insurance industry was using case management as a method of cost containment"
• Paul Deutsch - "In the mid-1970s, Paul Deutsch first identified the term 'Life Care Planning,' referring to future needs, to describe a tool to project the costs of medical care in the litigation environment." In "Damages in Tort Actions" (1981), a multi-volume text, Deutsch and co-author Fred Raffa "referenced case management, catastrophic disability case management, and catastrophic disability research as means to project future medical care."
• Kelly Lance - "In 1997, the discipline of nurse life care planning (NLCP) began" when Kelly Lance founded AANLCP. "She developed a NLCP curriculum with the nursing process methodology at its core, including concepts and skills pertaining to LCP application in the medical-legal arena."

S2KM: What advantages and disadvantages do nurse life care planners offer compared with life care planners with alternative professional backgrounds and certifications?

Ms. HOWLAND: Our advantage is our licensure as registered nurses. We explicitly use nursing diagnosis, a recognized scientifically validated taxonomy to justify the items in our plan that are based on our nursing assessments. This means that we do not practice medicine, we stay within our scope of practice, and our recommendations stand independent of approval from any other discipline.

S2KM: As editor of the AANCPL Journal, how do you stay "ahead of the knowledge curve" on life care planning issues and developments?

Ms. HOWLAND: Serving as editor of professional journals and the AANLCP Core Curriculum helps inform my practice of life care planning. Reading submissions and working with peer reviewers and authors are excellent ways to learn and help guide my professional practice. Of course, I also attend national educational forums, speak at some, and write articles.

S2KM: What are the most important current issues and developments facing life care planning?

Ms. HOWLAND: Whether and how the Patient Protection and Affordable Care Act (ACA) affects life care planning is probably our most important current issue. For example, two recent California cases appear to require cost offsets based on past or existing insurance benefits. Historically, only Federal vaccine injury fund cases have required such offsets in life care plans. An upcoming issue of the Journal of Legal Nursing will focus on ACA-related issues.

S2KM: Some commentators have suggested the ACA will eliminate the need for life care plans in personal injury cases. Do you agree or disagree?

Ms. HOWLAND: I disagree. The vast majority of life care plan items and their associated costs are not covered by health insurance, including Medicare or Medicaid. Persons who seriously suggest that the ACA will render the need for life care plans moot are poorly-informed on health insurance, life care planning, or both. They should pull out the big booklet that describes their own health insurance and read it. They will be shocked.

S2KM: How important is the Medicare set-aside (MSA) market for life care planners? How does a life care planner's work product for MSAs differ, if at all, compared to work product for non-MSA applications?

Ms. HOWLAND: MSAs take Medicare’s interest into account in funding settlements. Currently, they are only required for worker’s compensation cases. Most life care plan costs are for items that Medicare does not cover. Therefore, it is comparatively simple for whoever prepares the MSA to abstract the applicable information from the much more comprehensive life care plan. Your readers should also know that although MSA certifications exist, Medicare has no requirement whatsoever for persons preparing MSAs to hold any type of certification.

S2KM: How can structured settlement professionals, settlement planners and special needs attorneys learn more about life care planning?

Ms. HOWLAND: I recommend that they ask us directly. Most life care planners welcome opportunities to visit an office or to attend a conference. Understanding the differences between certified nurse life care planners (CNLCP, LNCP-C) and non-nurse CLCPs is also important. Interested professionals should review the IARP and AANCLP websites for information, attend our conferences, and/or invite us to speak at their conferences.

In Part 3 of S2KM's interview with Wendie Howland, Wendie will respond to criticism some attorneys have directed at life care planners.

Life Care Planners

The increasing number, importance and roles of life care planners represents one of the most significant developments S2KM has observed while attending 2014 structured settlement and settlement planning stakeholder educational conferences .

Historically, many structured settlement consultants and personal injury settlement planners have partnered with life care planners and incorporated life care plans into their reports.

In its Standards of Practice , the International Association of Life Care Planners (IALCP), which represents one section of the International Association of Rehabilitation Professionals, offers the following descriptions for:

• Life Care Planning: "a transdisciplinary specialty practice. Each profession brings to the process of Life Care Planning practice standards which must be adhered to by the individual professional, and these standards remain applicable while the practitioner engages in Life Care Planning activities."
• Life Care Plan: "a dynamic document based upon published standards of practice, comprehensive assessment, data analysis and research, which provides an organized, concise plan for current and future needs with associated cost for individuals who have experienced catastrophic injury or have chronic health care needs."

The first published reference to life care planning appeared in "Damages in Tort Actions" (1981), a multi-volume text written by life care planning pioneer Paul M. Deutsch Ph.D. and economist Fred Raffa Ph.D. according to an "Introduction to Life Care Planning" which appears on the Paul M. Deutsch & Associates website. Deutsch's "Introduction" further states that life care planning resulted from the integration of three distinct fields of practice: experimental analysis of behavior, developmental psychology, and case management.

Although life care planning originated within, and still primarily focuses upon, the field of personal injury litigation support, its expanded applications now encompass elder care, chronic illness, and discharge planning.

The strategic relationship among structured settlement consultants, settlement planners and life care planners has been further enhanced by Medicare set-aside arrangements (MSAs) which represents a strategically important sub-market for all three professional communities. Life care planners increasingly participate as, or work for, MSA allocators and administrators in addition to providing MSA life care plans and/or medical cost projections.

Life care planners predominate the membership of the National Alliance of Medicare Set-Aside Professionals (NAMSAP), "the only non-profit association exclusively addressing the issues and challenges of the Medicare Secondary Payer Statute and its impact on workers’ compensation and liability settlements". Multiple life care planners were among the featured speakers at NAMSAP's 2014 Winter Regional and Annual Meetings.

Individual life care planners have also expanded their profession's public profile during 2014 as featured speakers at other structured settlement and settlement planning stakeholder conferences including: AAJ (Susan Riddick-Grisham), ASNP (Ann Koerner), SSP (Christine Melancon), and NAELA (Beth Prather). Multiple life care planners exhibited at the AAJ 2014 Annual Conference.

Community Scope and Diversity

Most life care planners have a nursing background and many are members of the American Association of Nurse Life Care Planners (AANLCP). In addition to providing Standards of Practice and a Code of Professional Ethics, ASNLCP offers its members a certification program (CNLCP) and publishes a life care planning Journal. AANLCP's 2014 Educational Conference will take place October 24-27 in Atlanta.

Correction (8/18/2014) - A knowledgeable source has informed S2KM that most life care planners (a plurality) are not registered nurses, but rather vocational counselors, and/or educational consultants, psychologists, and social workers.

IALCP, a separate professional association, promotes itself as "an umbrella organization that supports all life care planners" working with other associations such as ASNLCP and the Foundation for Life Care Planning Research (FLCPR). In addition to its Standards of Practice, IALCP publishes the Journal of Life Care Planning , and sponsors the 2014 International Symposium on Life Care Planning scheduled for September 20-21 in Minneapolis.

Additional resources and diversity within the life care planning community:

• The International Commission on Health Care Certification offers professional credentialing to certify life care planners (CLCP) and Medicare set-aside consultants (MSCC)
• The Care Planner Network provides "an online community in which life care planning and case management professionals can share information about practice management, professional development and challenging case issues."
• "Life Care Planning and Case Management" - a textbook edited by Roger Weed and Deborah Berens is considered "The Bible" of life care planning according to industry representatives.
• Separate organizations featuring physicians and attorneys market life care planning products and services.

Impact of the Affordable Care Act

Although commentators generally agree the Patients Protection and Affordable Care Act (ACA) will impact life care planners and life care plans utilized in personal injury cases, their analysis and conclusions differ. Compare, for example:

• A paper titled "Potential Effects of the Affordable Care Act on the Award of Life Care Expenses", in which economists Joshua Congdon-Hohman and Victor A. Matheson predict life care planners will play an increasingly important role in personal injury damage analysis.
  • Prior to the ACA, life care planners were tasked with identifying medical and living expenses not otherwise required "but for" the accident.
  • Under the ACA, the authors maintain life care planners must also identify which health care and living expenses will, and will not, be covered by the ACA's minimum insurance requirements. And, despite certain minimum federal standards, these requirements may differ by state.
• A paper titled "How Obamacare May Limit Projected Expenses in Personal Injury Life Care Plans" in which attorneys Mark Yagerman and Max Bookman highlight the question of whether ACA implementation should override the collateral source rule and cause the courts or legislatures to allow direct presentation of the plaintiff’s health insurance coverage to the jury.
  • If yes, the authors believe "such evidence should significantly curtail the persuasiveness that life care plans’ projections represent actual future medical expenses that are supposedly to be paid completely out-of-pocket by the plaintiff."
  • The authors acknowledge, however, that certain future expenses in life care plans (“permanent confinement issues” such as long term care, nursing care, and homecare) are rarely covered by health insurance and will still be worked out pursuant to each state's collateral source rule.
  • Other expenses (“frequency issues” such as continuous physical therapy and occupational therapy) are capped under most health insurance plans so recommended visits beyond the frequency cap could likewise be unaffected by the ACA.
• A power point titled "The Affordable Care Act: Taking a New Approach to Damages" in which presenters Caryn L. Lilling and Thomas R. Shimmel offer (beginning page 32) a critical "defense-oriented" view of life care planners and recommend ACA-enhanced strategies for attacking life care planners' professional credibility, testimony and work product.

Regardless of how future ACA-related litigation and legislation play out, life care planners and life care plans can be expected to continue to play an important role in personal injury negotiations and settlements. As a result, life care planners are likely to remain strategic analytic collaborators and work product contributors for structured settlement consultants and personal injury settlement planners.

AAJ 2014 Annual Meeting

Increasing use of structured settlements by plaintiff attorneys and their clients requires a more "unified marketing strategy" by stakeholders according to multiple brokers who exhibited at the recent American Association for Justice (AAJ) 2014 Annual Conference in Baltimore.

Seven primary market brokers, one structured settlement annuity provider and two secondary market companies were prominent among the 141 sponsors and exhibitors at the AAJ conference which also included as exhibitors multiple companies offering lien resolution, MSA compliance, life care planning, legal finance and economic consulting services.

Other marketing advice from AAJ structured settlement exhibitors offering insights into how to grow the primary market:

• "Our industry needs more educational marketing.
• "The secondary market has stolen our brand and we need to get it back.
• "Many plaintiff attorneys do not discuss structured settlements with their clients.
• "We need to educate plaintiff attorneys to stop thinking of their clients as 'investors' and to recognize the benefits of structured settlements.
• "Most plaintiff structured settlement brokers are too narrowly focused on product.
• "Future success requires 'full service' not just annuities - financial planning, settlement trusts and lien resolution.
• "Plaintiff brokers need to be more holistic and offer plaintiff attorneys a 'brain trust' of strategic relationships.
• Offering non-structured settlement products and services to plaintiff attorneys 'has taken the lid off' our company's original view of the size of the settlement planning market."

Underperforming Market

Many industry observers view the United States structured settlement primary market as a strategic, underperforming segment of the larger personal injury settlement planning market:

• Primary market structured settlement annuity premium increased approximately seven (7%) percent to $5.134,380,855 in 2013 (compared with $4,819,124,617 in 2012) according to industry estimates compiled by Melissa Evola.
• Total structured settlement cases in 2013 also increased to 26,533 from 25,038 a year earlier for an average case premium of $193,495.
• The 2013 annual premium totals, however, fell substantially short of the historic 12 month industry high ($6,226,578,725 in 2008) after consistently averaging close to $6 billion annually from 2001-2007.
• Evola's 2013 compilation also reported an annual decrease in annuity premium for non-qualified structured settlements (from $170.1 million in 2012 to $164.9 million in 2013) despite earlier industry projections of a large and growing market .
• Non-qualified structured settlements represent transfers of periodic payment obligations that do not meet the requirements of IRC sections 130 and 104(a)(1) or (2) including deferred plaintiff attorney fees.
• Independent industry sources further report a substantial shift in recent structured settlement premium with increasing sales to fund workers compensation Medicare set-aside arrangements (WCMSAs).

For comparison, based upon Towers Watson's 2011 Annual Study of "United States Tort Cost Trends" and utilizing Tower Watson's 2002 "best estimate" of payout percentages, S2KM estimates that more than $170 billion of United States tort costs annually have represented payments to injury victims and their attorneys. The Towers Watson study excluded: 1) no-fault auto insurance; 2) property coverages; 3) workers compensation; 4) certain extraordinary (one time) costs.

Structured Settlement Marketing - to Defendant Insurers

Although primary market structured settlement participants have successfully marketed their products and services to defendants and their insurers, they have been less successful marketing to plaintiff attorneys and their clients.

A 2011 National Litigation Management study, commissioned by the Council on Litigation Management (CLM) and conducted by Revere Advisory, identified structured settlement as the "most penetrated external initiative" among 30 litigation-related service areas analyzed based upon interviews with leading litigation management executives.

The success of structured settlement marketing to defense insurers was further evidenced by a 2014 study of "how senior claims executives perceive the value of structured settlements and the value that structured settlement consultants bring to the table" commissioned by the National Structured Settlement Trade Association (NSSTA) and conducted by CLM Advisors. Among the findings - ninety percent of respondents:

• Indicated their organizations maintain a “formalized structured settlement program”; and
• Reported their belief that, when a structured settlement consultant is involved, claims are “more likely to settle.”

 Structured Settlement Marketing - to Plaintiff Attorneys and Injury Victims

Earlier in 2006 (before interest rates crashed), NSSTA sponsored a survey of plaintiff attorneys involved in structured settlements (43 telephone surveys) and structured settlement recipients (1275 telephone and Internet surveys) titled: "A Study of the Structured Settlement Process Conducted on behalf of the National Structured Settlement Trade Association." Among the results, as reported at NSSTA's 2007 Winter and Annual meetings:

• Structured settlement recipients:
  • 65% said they had not heard about structured settlements prior to settlement.
  • Most were uncertain whether a structured settlement consultant was involved with their case.
  • 34% recalled receiving educational information while 75% of this 34% said the information was helpful.
  • 66% first learned about structured settlements from their trial attorney.
  • 75% said they were very happy their settlement included structured settlement annuities.
  • 75% said they would recommend a structured settlement.
• Plaintiff attorneys involved in structured settlements:
  • 95% said they are proponents of structured settlements.
  • 70% said they retain a structured settlement consultant at least for some cases.
  • When asked: "Whom do you prefer to use for purposes of financial planning for your clients?", the attorneys responded:
    • 30% - Trust company/department.
    • 28% - Financial planner.
    • 23% - Structured settlement consultant.
    • 19% - No response.

Based upon the 2006 survey results, however, NSSTA estimated only 7% of personal injury settlements between $75,000 and $200,000 include structured settlements; and only 30% of personal injury settlements above $1 million include structured settlements.

Growing the Primary Market

What explains the apparent differences in marketing success by the primary structured settlement industry to 1) defense insurers; and 2) plaintiff attorneys and personal injury victims?

Several explanations are possible. They deserve and require greater analysis by the primary market. As one example, while defense brokers essentially sell a singular structured settlement product to their clients without direct competition from other financial/insurance product providers, plaintiff brokers must compete with settlement trustees, financial planners and other providers of asset management services.

As a result, plaintiff structured settlement brokers increasingly are evolving into alternative business models that offer structured settlement annuities as one of multiple products and more fully participate in a larger, more complex business (personal injury settlement planning) than structured settlement defense brokers.

Growing the primary structured settlement market therefore requires its proponents to ask themselves these fundamental questions: "what business are we in?", or, stated somewhat differently, "in what markets do we, or should we, participate?"

Failure to sufficiently address these issues has perpetuated both "inside-the-box" strategic thinking and traditional marketing strategies responsible, in part, for recent sales declines of the structured settlement product - a product which offers multiple, unique advantages and benefits from public policy endorsement, multiple tax preferences and statutory consumer protection.

The Settlement Planning Market

Despite an abundance of related professional associations, participants and conferences, as well as legislative and regulatory developments, personal injury settlement planning remains an evolving concept and market with competing definitions, standards and business models and many unanswered questions.

Many recent and continuing legislative and regulatory developments impact personal injury settlement planning, including:

• Affordable Care Act
• CMS WCMSA Reference Guide
• The SMART Act
• Defense of Marriage Act
• Dodd-Frank Uniform Fiduciary Standard
• Bipartisan Budget Act of 2013

Settlement planners consist, or represent a blend, of several professionals in addition to traditional personal injury litigation participants. These professionals include: tax attorneys, special needs attorneys, trustees, financial planners, structured settlement specialists, life care planners, economists, Medicare set-aside (MSA) specialists and damage allocators.

Professional associations, in addition to AAJ, whose members engage in settlement planning include: NSSTA, SSP, NAELA, ASNP, SNA, NAMSAP, AANLCP - and NASP assuming the definition of settlement planning includes adjustments during an injury victim's lifetime.

To grow the primary market, structured settlement proponents must learn how to better market the benefits and applications of structured settlements to plaintiff attorneys and these other professional groups and associations in the context of evolving settlement planning marketing, work product, business standards and educational priorities.

This educational and marketing challenge requires all structured settlement participants to fundamentally "re-think" structured settlements and their own roles in personal injury settlement planning. One result should be consideration of a more unified marketing strategy to plaintiff attorneys and their clients among heretofore competing professional associations such as NSSTA, SSP and NASP.

Conversations with structured settlement exhibitors at the AAJ 2014 Annual Meeting indicate some primary market plaintiff brokers already understand this message and are transitioning their business models accordingly.

For S2KM's report about the AAJ 2014 Winter Meeting, see this prior blog post.

Government Medicaid Reports

Despite continuing evidence and predictions of expanded enrollment for private health insurance pursuant to the Patient Protection and Affordable Care Act (ACA), Medicaid planning, especially for long-term care costs, continues to represent a settlement priority for many past and present personal injury victims.

Medicaid is a means-tested program jointly funded by the Federal government and the states that provides health insurance to eligible low-income individuals. Each state manages its own Medicaid program with flexibility to determine eligibility and other criteria.

Two recent government reports addressing Medicaid issues should interest settlement planners and structured settlement consultants, as well as special needs and elder law attorneys.

CEA Medicaid Expansion Report

In addition to expanding private health insurance, the ACA also expanded eligibility for Medicaid by offering financial support to states that expand Medicaid eligibility to non-elderly individuals in families with incomes below 133 percent of the Federal Poverty Level. Through 2016, the Federal government has committed to paying participating states 100 percent of the related costs reducing to 90 percent in 2020 and subsequent years.

The U.S. Supreme Court ruled in 2012 that the Federal government could give states a choice to accept Medicaid expansion but could not require them to do so. To date, 26 states and D.C. have expanded Medicaid and 24 states have not. A political battle continues between President Obama's administration and states that have declined to expand Medicaid.

To promote further Medicaid expansion, the Council of Economic Advisers (CEA) published a report this month titled "Missed Opportunities: The Consequences of State Decisions Not to Expand Medicaid" (CEA report). The report states that 5.2 million people have gained Medicaid or CHIP coverage in states that have expanded Medicaid. It also cites an Urban Institute estimate that 5.7 million people will be deprived of health insurance coverage in 2016 if the other 24 states do not.

The CEA report concludes: "by expanding their Medicaid programs, States can improve access to essential medical care, reduce financial hardship, improve their citizens' mental health and longevity, and claim billions of dollars in Federal funding that could boost their economies today."

To quantify the benefits of expanded Medicaid to newly insured individuals, the CEA report relies on estimates from the Oregon Health Insurance Experiment (OHIE). The OHIE, which the CEA characterizes as "a unique research opportunity", resulted from Oregon's 2008 decision to allocate Medicaid coverage by lottery.

Acknowledging "[t]he limited sample size of the OHIE makes it more difficult to reach firm conclusions about the effect of Medicaid on objective measures of physical health", the CEA report also relies on parallel research literature that uses "quasi-experiments created by past policy changes."

The CEA report quantifies the following purported benefits for newly insured individuals on a state-by-state basis with supporting maps and tables:

• Improved access to care
• Greater financial security
• Better mental and overall health

In addition, the CEA report utilizes data from the Congressional Budget Office and Urban Institute to quantify the following projected benefits of expanding Medicaid for state economies with supporting state-specific maps and tables:

• Additional Federal funds
• Increased employment
• Greater overall economic activity

CEA Report Criticism

Perhaps predictably, given the political debate that surrounds the ACA and Medicaid expansion, many commentators have criticized the CEA report. One example is Robert Samuelson, whose op-ed titled "The Real Medicaid Problem" appeared in the July 14, 2014 issue of the Washington Post.

Samuelson questions whether the promised 90 percent Federal reimbursement rate will remain permanent. He quotes Matt Salo of the National Association of Medicaid Directors: “The ACA says what it says. Future Congresses can repeal or modify it.”

Samuelson also points out how demographic trends ("ignored by the [CEA] report") could become a financial albatross for the states. As one result of rising Medicaid costs, according to Samuelson, "[t]he competition between nursing homes and home health care — on the one hand — and classroom teachers, higher education, police and other governmental services — on the other — will intensify."

In a similar critique, a July 11, 2014 Wall Street Journal article , written by Chris Jacobs and titled "Why States are Hesitating to Expand Medicaid", highlights a recent study of "State Healthcare Spending on Medicaid" sponsored by the Pew Charitable Trusts and findings by the Commerce Department’s Bureau of Economic Development to explain why many states have not rushed to expand Medicaid.

For a state-specific example (Virginia) of opposing political viewpoints concerning Medicaid expansion, compare this July 11, 2014 Wall Street Journal op-ed by Fred Barnes with this July 11, 2014 Washington Post editorial.

GAO Medicaid Report

The Government Accountability Office (GAO) has also published a recent Medicaid report titled "Medicaid: Financial Characteristics of Approved Applicants and Methods Used to Reduce Assets to Qualify for Nursing Home Coverage" which may prove cause for concern among special needs and elder law attorneys.

As justification for its study, which was requested by Senators Tom Coburn (R-OK) and Richard Burr (R-NC) and Representatives Darrell Issa (R-CA) and Trey Gowdy (R-SC), the GAO points out:

• "Medicaid paid for nearly one-third of the nation’s $158 billion in nursing home expenditures in 2012"; and
• Many individuals utilize various planning techniques to reduce their assets and qualify for Medicaid - despite continuing efforts by Congress to discourage such activity and to address financial eligibility requirements for Medicaid coverage of nursing home care. See, for example "The Deficit Reduction Act of 2005".

Historically, many special needs and elder law attorneys have devised these asset reduction techniques and advised their clients when and how to utilize them.

In responding to the Congressional request for information about the extent of asset reduction techniques to qualify for Medicaid nursing home coverage, the GAO report:

• Examined financial characteristics of applicants approved for Medicaid nursing home coverage in selected states; and
• Identified methods used to reduce countable assets to qualify for Medicaid as well as information state Medicaid workers consider most useful in assessing an applicants’ financial eligibility.

Among its findings, the GAO report identifies four main methods used by applicants to reduce their countable assets (income and resources) and qualify for Medicaid coverage:

• "Spending countable resources on goods and services that are not countable towards financial eligibility, such as prepaid funeral arrangements;
• "Converting countable resources into noncountable resources that generate an income stream for the applicant, such as an annuity or promissory note;
• "Giving away countable assets as a gift to another individual—such gifts could lead to a penalty period that delays Medicaid nursing home coverage; and
• "For married applicants, increasing the amount of assets a spouse remaining in the community can retain, such as through the purchase of an annuity."

NAELA Response

Promising a thorough analysis of the GAO report, the National Academy of Elder Law Attorneys (NAELA) has responded with a press release recommending the GAO report as "a starting point for an urgent review of the long-term crises that millions of Americans and their families are facing."

The GAO report, according to NAELA, "highlights the impact of a public policy that requires persons needing long-term services and supports for chronic diseases such as dementia, ALS, and Parkinson's to impoverish themselves to be eligible for treatment under Medicaid while those with heart disease and more acute maladies receive health care coverage through Medicare."

For additional NAELA resources addressing long-term care and Medicaid, see:

• NAELA position paper
• "Myths and Realities about Medicaid Planning"

For additional S2KM reporting about Medicaid and the ACA, see the structured settlement wiki.

 

ACA and Future Medical Expenses - 3

Is the Affordable Care Act (ACA) good or bad for structured settlements? What impact will it have on settlement planning in personal injury cases?

Four years following the ACA's enactment, and two years after the U.S. Supreme Court upheld its primary provisions as constitutional, including the individual mandate and elimination of pre-existing condition restrictions which became effective nationally on January 1, 2014, those questions not only lack definitive unanswers - they have not yet been comprehensively addressed in any public forum.

One primary related issue is what impact the ACA will have upon future medical expenses in personal injury cases. The answer depends, however, not only on the terms and conditions of the ACA, but also on how the ACA interacts with other related laws and legal developments such as Medicaid (including the Bipartisan Budget Act of 2013), Medicare (including WCMSAs , liability MSAs and MMSEA) as well as state specific collateral source and subrogation rules.

To provide a point of reference for future S2KM reporting about the legal interplay involving the ACA, personal injury cases and structured settlements, S2KM is publishing a series of blog posts looking generally at the "ACA and Future Medical Expenses":

• Part 1 reviews an article written by Seth Cardeli, titled "Thwart the Assault on Future Medical Expenses", which appeared in the May 2014 issue of the American Association for Justice (AAJ) Trial Magazine.
• Part 2 summarizes ACA-related analysis by speakers at professional conferences S2KM has previously attended and includes excerpts from prior S2KM reviews of those conferences.
• Part 3 (this post) summarizes similar ACA analysis from articles and papers previously reviewed by S2KM and also features excerpts from those reviews.

Authors of Articles and Papers Addressing ACA Issues

NAELA Journal

NAELA devoted the entire Spring 2011 edition of its "NAELA Journal" to health care reform generally and the ACA more specifically. Available to NAELA members only, this NAELA analysis featured a detailed introduction by NAELA Journal's then Editor-in-Chief William J. Brisk plus eight articles and a supplement of online resources.

• Brisk's introduction addressed why health care reform is "too significant to ignore" and highlighted its most important features. His analysis identified what the ACA actually does and does not accomplish and emphasized the important roles Medicare, Medicaid, private health insurance companies and health maintenance organizations will play in implementing health care reform.
• Additional NAELA Journal topics and authors:
  • Health Care Changes: Challenges to Medicare - Vicki Gottlich, Patricia Nemore, and Alfred J. Chiplin Jr.;
  • The New CLASS Act - Morris Klein;
  • Nursing Home Regulations - Charles Perez Golbert;
  • Health Care Reform’s Impact on Small Businesses and Individuals - Ben A. Neiburger;
  • Health Care Reform and End-of-Life Issues - Fay Blix;
  • The Affordable Care Act’s Changes to Medicaid’s Coverage for Long-Term Services and Supports - Gene Coffey;
  • Health Insurance Reforms: Once In a Lifetime Change or Same as It Ever Was? - Lucinda E. Jesson;
  • Medicaid Expansion Under the 2010 Health Care Reform Legislation: The Continuing Evolution of Medicaid’s Central Role in American Health Care - Renée M. Landers and Patrick A. Leeman;
  • Online Resources Available to Supplement Health Care Reform Discussion - prepared by Claire DeMarco.

Alfred Chiplin, Jr. and Bethany Lilly

In addition to the Spring 2011 edition of the NAELA Journal, NAELA awarded its 2014 John Regan Writing Award, honoring the authors of the best article published in the "NAELA Journal" during the past year, to Alfred Chiplin, Jr. and Bethany Lilly, for their 2013 article titled "Medicare’s Future: Letting the Affordable Care Act Work, While Learning From the Past" analyzing various ACA cost-saving components on Medicare.

Chiplin and Lilly begin their article with an extensive review of the historical debate concerning public health insurance in the United States including a summary of key components of the current Medicare system and current concerns about Medicare solvency.

This historical debate not only defines the current structure of the Medicare program but also, according to Chiplin and Lilly, "the on-going debate ... about the necessary elements of a comprehensive program, including health care financing and accessing the quality of necessary services."

Chiplin and Lilly provide statistical evidence to highlight the negative impact of rising health care costs on Medicare and Medicare beneficiaries as well as the United States economy. Following their historical and statistical summaries, Chiplin and Lilly address the central issue in their article: "how will the ACA reduce health care costs?"

The ACA's cost-containment programs, according to Chiplin and Lilly, are based upon the theory that costs can be reduced by demanding a higher quality of care and greater efficiency from providers and allowing providers to share in the savings. ACA programs the authors highlight include:

• Patient-Centered Medical Home
• Medicare Shared Savings Program
• The Independent Payment Advisory Board
• Quality Review Mechanisms.

Chiplin and Lilly view ACA as "a vast experiment in paying for high-quality health care while preserving the Medicare program and expanding access to health care for other population segments." Implementation will be a tough, but doable challenge so long as we "let the tools of the ACA work".

Among the implementation challenges: the "fiscal cliff", insurance exchanges, and integrating services for "dual-eligibles". Overtime, the authors believe the ACA's spending and cost-containment provisions should at least slow the health care spending curve.

Seth Cardeli

The impact of the ACA on future medical expenses, perhaps the most important ACA-related issue for personal injury stakeholders, including settlement planners and structured settlement professionals, was addressed most recently by plaintiff attorney Seth Cardeli in an article  featured in the May 2014 issue of the AAJ's Trial Magazine, and summarized by S2KM, titled "Thwart the Assault on Future Medical Expenses".

In his article, Cardeli labels as "speculative and misleading" current defense efforts to convince courts the ACA changed how courts should calculate future medical expenses thereby transforming the ACA into "the latest tort 'reform' vehicle." Their efforts should fail, Cardeli maintains, because they wrongly attempt to circumvent states' collateral source and subrogation rules.

Cardeli's article cites cases from several state venues where courts have rejected defendants' attempts to limit plaintiff evidence of future medical expenses or to present their own evidence of ACA-related health care coverage. He urges plaintiff attorneys to aggressively oppose all related motions in limine by arguing:

• The effect of the ACA on a plaintiff's recoverable future medical expenses is speculative.
• Evidence of collateral sources is prejudicial to personal injury plaintiffs.
• Tortfeasors should bear the risk that any future medical expenses will not be covered by medical insurance.

Joshua Congdon-Hohman and Victor Matheson

A 2012 research paper titled "Potential Effects of the Affordable Care Act on the Award of Life Care Expenses" and written by economists Joshua Congdon-Hohman and Victor Matheson provides a notable counter argument to Seth Cardeli's Trial Magazine article. Contrary to Caredi, these economists maintain: "the ACA may well have indirectly resulted in a great deal of tort reform" and, as a result, "awards in personal injury cases could be dramatically impacted".

Their argument:

• When the ACA is fully implemented in 2014, all individuals will be required to purchase health insurance or pay a penalty.
• The ACA provides insurance premium subsidies for low income individuals who do not receive health insurance through the government or from a family member’s employer.
• The ACA prevents price discrimination based on health status and bans annual and lifetime expenditure limits.
• Most individuals will pay the same cost for health insurance before and after an accident.
• The legal maximum out-of-pocket expenses allowable under the ACA is $5,950 per year.
• The goal of tort law is to make the plaintiff "whole".
• Funding of health care through private insurance is a valid methodology for accomplishing this goal now that the ACA makes those markets available to injury victims.
• Therefore, the ACA:
  • Should simplify and reduce calculations of future medical damages;
  • By limiting those costs to "[health insurance] premiums and out-of-pocket limits less any pre-injury expected medical costs and penalties if uninsured."

Similar to Cardeli, and significantly, Congdon-Hohman and Matheson acknowledge a collateral source issue is "at play" and "remains of significant importance". Unlike Cardeli, however, they argue "there is reason to believe the ACA changes the underlying reason of excluding collateral source compensation from inclusion in tort cases."

More specifically, Congdon-Hohman and Matheson maintain: "removing existing health insurance coverage from exclusion under the collateral source rule would not significantly affect health insurance coverage rates reducing the economic rationale for having a collateral source rule in place for health insurance."

As a related result of the ACA, Congdon-Hohman and Matheson believe life care planners will play an increasingly important role in personal injury damage analysis.

• Prior to the ACA, life care planners were tasked with identifying medical and living expenses not otherwise required "but for" the accident.
• Under the ACA, the authors maintain life care planners must also identify which health care and living expenses will, and will not, be covered by the ACA's minimum insurance requirements. And, despite certain minimum federal standards, these requirements may also differ by state.

Rebecca Levenson and Ann Levin

During 2013, S2KM reviewed two law review articles which address whether and how the ACA will impact the collateral source rule (CSR):

• Rebecca Levenson (Levenson), "Allocating the Costs of Harm to Whom They are Due: Modifying the Collateral Source Rule after Health Care Reform" (Levenson article), University of Pennsylvania Law Review, Volume 160.
• Ann S. Levin (Levin), "The Fate of the Collateral Source Rule After Health Care Reform" (Levin article), UCLA Law Review, Volume 60.

Although every state and federal court recognizes the CSR in some form, many states have limited its scope or abolished it completely as a result of tort reform. Plaintiffs in different states and/or different courts therefore can receive widely different damage awards for the same injury because different courts measure medical costs differently.

Levenson and Levin each summarize traditional arguments favoring and opposing the common law CSR. However, neither Levin nor Levenson:

• Directly address whether and/or how the CSR will affect calculations of future medical damages, as opposed to past medical damages.
• Discuss how the ACA's restrictions against pre-existing conditions impact calculations of medical damages.

CSR proponents emphasize the deterrence theory of tort law which seeks to punish tortfeasors and deter them from injuring future plaintiffs:

• Defendants should not be unjustly enriched if a plaintiff purchases medical insurance.
• The CSR incentivizes plaintiffs to purchase medical insurance.
• Collateral sources never fully reimburse plaintiffs.
• Subrogation rights reduce and/or prevent double recoveries.
• The CSR promotes independence of jury determinations.

CSR opponents argue the purpose of tort law is compensation for harm not deterrence. They criticize the CSR for:

• Allowing some plaintiffs to recover twice.
• Generating different damage awards for the same injuries in different cases.
• Adding an unjustified element of punitive damages.
• Inflating awards.
• Encouraging claimants to go to trial.

Both Levenson and Levin agree the ACA's individual mandate weakens the traditional common law CSR rationale and that medical damages should now be calculated differently. However they do so for different reasons and propose different solutions.

• Levin - Levin's primary argument for changing the traditional common law CSR is that it calculates medical damages based on medical provider bills instead of the lower negotiated reimbursement rate paid by most health insurers. To achieve fairness and accuracy post-ACA, Levin maintains courts should calculate medical damages using: 1) the negotiated reimbursement rate; and 2) a portion of the premium payments the plaintiff has paid for medical insurance.
• Levenson - The purpose of changing the CSR after the ACA, according to Levenson, should be to align the CSR's outcome with the underlying goal of the individual mandate. Whether and what changes will occur, however, will vary from jurisdiction to jurisdiction depending upon a number of factors which Levenson identifies including the current status of the CSR in a particular state. Levenson insists any changes in the CSR must account for the different groups affected: insured plaintiffs, willfully uninsured plaintiffs and exempt plaintiffs.

Conclusion

For personal injury and settlement planning professionals who are attempting to understand how the ACA impacts personal injury damage analysis, future medical expenses, negotiation strategy, work product, and funding options, this S2KM blog series hopefully captures some of the complexity of the related laws, issues and perspectives and encourages continuing and more comprehensive analysis.

The impact of the ACA on structured settlements, and settlement planning more generally, depends not only upon the terms and conditions of the ACA itself, but also upon the new and evolving legal construct for future medical expenses in personal injury cases created by the interaction of the ACA with these related laws and legal developments.

For S2KM's continuing coverage of ACA-related issues, see the structured settlement wiki.

ACA and Future Medical Expenses - 2

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

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

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

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

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

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

Conference Speakers Addressing ACA Issues

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

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

• Will my disabled client be able to get health insurance now?
• For settlement purposes, can future medicals be reduced to estimated lifetime insurance premiums until my client becomes eligible for Medicare or Medicaid?
• Do private health plans have “set-aside” or special needs trust requirements?
• If my client can get private health coverage, will he/she still need public benefits?
• If my client can obtain private health insurance, why do I need a special needs attorney or a special needs trust?
• As a plaintiff attorney, is there anything else I need to know about health care reform or related legislation?
• Barrett also advised special needs attorneys to:
  • Exclude from their services health coverage options advice;
  • Screen claimants to determine whether needs-based Medicaid will be important.

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

• The need for self-settled (first party) special needs trusts has decreased (except when a beneficiary requires long term institutional care) because the ACA provides better insurance options than Medicaid for many persons with pre-existing medical conditions including personal injury victims.
• Existing self-settled (first party) special needs trusts should be reviewed, in the context of the ACA's prohibition against pre-existing condition exclusions and available medical insurance options, and in many cases terminated.
• Damages for future medical costs in personal injury lawsuits could be reduced assuming the premium costs of newly available insurance premiums become admissible in proving and/or defending damages.

ASNP 2013 Annual Conference

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

• Reduced personal injury verdicts and settlements.
• A different calculus for determining future medical damages based upon health insurance costs.
• Fewer first party special needs trusts (SNTs).
• Reduced demand for Medicare and Medicaid for persons with disabilities under age 65.
• New opportunities for special needs attorneys because of the complexity of the ACA.

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

• Question: will the SSA allow early termination of SNTs to comply with ACA?
• SSA Answer: right now, any early termination of a SNT will require payment of reversionary interest.

ASNP 2014 Annual Conference

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

ASNP's 2014 conference featured two ACA presentations:

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

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

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

NAELA and SSP 2014 Annual Conferences

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

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

NAMSAP 2014 Conferences

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

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

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

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

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

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

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

ASNP 2014 Annual Conference

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

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

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

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

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

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

ASNP's 2014 conference featured two ACA presentations:

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

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

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

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

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

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

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

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

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

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

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

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

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