Beyond Structured Settlements

NAELA 2016 Summit

As a benchmark for planning and/or evaluating 2016 professional association educational conferences, the National Academy of Elder Law Attorneys (NAELA) Second Annual Summit, hosted January 26-27 in Newport Beach, California, established multiple impressive standards.

Organized by Co-Chairs Michael Amoruso and Professor Roberta Flowers into a series of overlapping three-hour Immersion Sessions and one-hour Breakout Sessions, the NAELA Summit fulfilled its promise of "div[ing] deep" into real-life elder law and special needs law case situations and challenging office practices. Designed to support different types of learning, individual sessions were supplemented with workshop documents made available online in advance of the conference.

Approximately 200 NAELA members attended the Summit - including a significant number of first-time NAELA member conference attendees plus an additional 20 sponsoring exhibitors. Combining the old with the new, two of NAELA's original founding members (Michael Gilfix and Vincent Russo) appeared as featured speakers. Networking was encouraged and multiple opportunities were scheduled including a First-Time Attendee Orientation Session.

Featured Summit Sessions

Personality Evaluation - Organizational anthropologist and marketing strategist Kimberly Dodson Gilbey delivered the Summit keynote address titled "How My Communication Style Can Help My Bottom Line." As a keynote supplement, attendees were encouraged to participate in a pre-conference personality type assessment and to wear their resulting "personality type badge" throughout the conference. Combined objectives included: 1) understanding how different personality styles interact in a professional context; 2) recognizing the impact of clients' communication styles; 3) learning to recognize problems resulting from conflicting communication styles; and 4) acquiring skills to address conflicting communication styles.

Technology Training - The NAELA Summit offered three separate technology breakout sessions:

• An iOS clinic led by Scott Grossberg profiling aps specifically recommended for elder law and special needs attorneys.
• A social media introduction by Robin Krooks focused on useful sites, marketing advice and consultative resources.
• An interactive technology clinic organized by Apple representatives to teach Apple technology accessibility features.

Peer Instruction - "Peer Instruction" is an increasingly popular, interactive teaching methodology developed by Harvard Physics Professor Eric Mazur in the 1990s as an alternative to the traditional lecture format. S2KM was introduced to peer instruction by Forge Consulting, a personal injury settlement planning company which utilizes peer instruction to accelerate learning among its new employees. As described on wikipedia, peer instruction is "a student-centered approach that involves flipping the traditional classroom by moving information transfer out and moving information assimilation, or application of learning, into the classroom."

With the exception of Forge Consulting, S2KM had not witnessed or participated in any peer instruction educational exercise prior to the NAELA Summit. Without referencing the term "peer instruction", or consciously utilizing this learning methodology, both of the NAELA Summit Immersion Sessions led by Frank Johns ("Skills and Law When Serving Clients with Diminished Capacity") and Michael and Mark Gilfix ("Advanced Elder Law, Tax, and Estate Planning from Start to Finish, Part 1") represented (from S2KM's perspective) highly successful peer instruction educational prototypes worth additional evaluation and replication by NAELA. Note: S2KM was unable to attend Part 2 of the Advanced Elder Law Immersion Session led by Mark Munson.

Practice Management - Especially useful for the many Summit attendees beginning their elder law and/or special needs practice, NAELA scheduled several sessions addressing practice management topics:

• Michael Weeks - Explaining the Value of Your Fees to Clients.
• Jennifer VanderVeen - Practice Management Idea Sharing.
• Vincent Russo - Staff to Success.
• Shirley Berger Whiteneck - Communicating "Bad News" to Clients.
• Kirsten Davis - Writing Concise Letters.
• Sue Bronson and Michael Kirtland - Dealing with High Conflict Families.

Public Policy - As the professional practice of NAELA members continues to expand beyond traditional elder law to include special needs planning and personal injury settlement planning, NAELA is likewise challenged to expand its public policy focus. NAELA Public Policy Committee Co-Chairs Morris Klein and Jason Frank and Public Policy Manager David Goldfarb provided Summit attendees with an overview of potential legislative and regulatory changes that could affect their professional practice. Although the Special Needs Trust Fairness Act remains NAELA's most important lobbying priority, NAELA has proactively addressed several other public policy issues:

• Submitting comments about proposed FINRA rules relating to financial exploitation of seniors and persons with disabilities.
• Urging CMS to ban pre-dispute arbitration provisions in long-term care facility agreements.
• Recommending expanded Medicare home health coverage for persons with chronic illnesses to the Senate Finance Committee Chronic Care Working Group.
• Highlighting unanticipated harms to care giving spouses that could result from H.R. 1771 - a Bill to amend the Social Security Act to count portions of income from annuities of a community spouse as income available to institutionalized spouses for purposes of eligibility for medical assistance.
• Urging the U.S. Department of Housing and Urban Development (HUD) to issue new guidelines to ensure that HUD rental assistance providers apply consistent rules for Special Needs Trust distributions throughout the U.S.
• Submitting an amici curiae brief (jointly with the Special Needs Alliance and National Housing Law Project) in the United States Court of Appeals for the First Circuit case of Kimberly DeCambre v. Brookline Housing Authority et al. on the issue of "whether 42 U.S.C. Section 1437a as construed by the Department of Housing and Urban Development permits a local housing authority to treat the return of principle from a resident's self-settled special needs trust as "income" for purposes of the Housing Choice Voucher Program."

Special Needs Trusts - As evidenced by separate annual conferences sponsored by Stetson and the University of Texas Law Schools, Special Needs Trusts (SNTs) continue to represent a primary focus of practice for many elder law and special needs attorneys. The NAELA Summit did not overlook this important topic offering the following related presentations:

• Stuart Zimring - Drafting SNTs.
• Patricia Kefalas Dudek - Navigating SNT Trustees Through Rough Waters.

Advanced Elder Law Review - The NAELA Summit was preceded by a two-day advanced Elder and Special Needs Law review course consisting of 14 sessions designed in part to help attendees prepare for the CELA Exam.

As a relatively new addition to professional educational conferences, the NAELA Summit significantly exceeded S2KM's expectations and should become an important educational priority for an increasing number of NAELA members.

For S2KM reporting about prior NAELA conferences as well as conferences sponsored by other professional associations addressing special needs, settlement planning and structured settlement issues, see the structured settlement wiki.

Structured Settlements 2014 - Settlement Planning

During the late 1970s, and throughout the 1980s, when defendants retained exclusive control of structured settlements, many brokers and their liability insurance company clients referred to unsuccessful sales as "cash outs". Their professional interests and curiosity were narrowly defined and focused upon their own product to the exclusion of other settlement related products and services.

With the advent of plaintiff structured settlement brokers, continuing legislative and regulatory developments, plus an expanding array of settlement planning professionals, products and product providers, structured settlements are now viewed by most stakeholders as a subset of the larger and more complex personal injury settlement planning market.

For future success, a new generation of structured settlement leaders must look beyond structured settlements and learn to re-position their product as a fundamental and catalytic settlement planning component. This strategic adjustment requires a more comprehensive understanding of, and interaction with, other professional associations whose members also provide settlement planning products and services.

During 2014, S2KM attended 13 national educational conferences sponsored by such professional associations. What follows are 2014 summaries, from a settlement planning perspective, of the educational programs offered by these professional associations plus links to related S2KM reporting. Prior S2KM blog posts provide 2014 summaries of the primary and secondary structured settlement markets. A subsequent S2KM blog post will summarize continuing 2014 developments related to ELNY and Reliance.

American Association for Justice (AAJ)

The role of personal injury attorneys historically has encompassed settlement planning and negotiation as well as litigation. As settlement planning has become increasingly complex, however, personal injury attorneys now require the services of other settlement planning professionals including: tax attorneys, special needs attorneys, settlement trustees, financial planners, structured settlement specialists, life care planners, case managers, economists, Medicare set-aside (MSA) specialists and damage allocators.

Regardless of case complexity, plaintiff attorneys continue to perform the following essential settlement planning roles:

• Recognizing settlement planning issues which impact their clients;
• Recommending appropriate settlement planning professional resources to their clients; and
• Retaining ultimate responsibility for effectuating settlements.

As one result, plaintiff attorneys represent the primary marketing target for for companies and professionals offering settlement planning services. Seven primary market brokers, one structured settlement annuity provider and one factoring company were among the 141 sponsors and exhibitors at the AAJ 2014 Annual Conference which also included companies offering lien resolution, MSA compliance, life care planning, legal finance and economic consulting services.

Notable features of the 2014 AAJ conferences:

• AAJ's educational programs focused on litigation issues with no structured settlement, no Affordable Care Act (ACA) and almost no settlement planning presentations.
• Exhibiting structured settlement brokers shared one distinguishing characteristic - their product and service offerings extended far beyond traditional structured settlements.

Related Resources:

• AAJ 2014 Winter Meeting
• AAJ 2014 Annual Meeting

Society of Settlement Planners (SSP)

SSP is a professional association most of whose members are plaintiff structured settlement brokers. SSP's 2014 Annual Conference provided three important contributions to settlement planning.

First, SSP President Neil Johnson's SSP keynote speech, which he repeated at NSSTA's Fall Conference, highlighted continuing polarization among structured settlement professionals and proposed the following solutions: 1) recognizing and accepting product diversity; 2) focusing on client and customer service; 3) identifying and pursuing permanent shared interests without necessarily agreeing on all issues; 4) engaging all perspectives to discuss industry problems and issues; 5) improving relationships among stakeholder groups; 6) promoting and practicing settlement planning not settlement selling.

Second, consistent with Johnson's proposed unification solutions, SSP's Secondary Market Panel featured two leading structured settlement transfer experts whose clients typically oppose each other in secondary market cases: NASP Executive Director Earl Nesbitt and Stephen Harris, former co-Chairman of NSSTA's legal committee.

Third, SSP speaker Michele Fuller identified her list of 2014 settlement planning "game changers" as a baseline for industry discussion:

1. Affordable Care Act.
2. Lien resolution statutory and regulatory developments.
3. Federal recognition of same-sex marriages.
4. Wrongful death caps determined unconstitutional.
5. State and federal tax reform.
6. Potential reductions in social security benefits.
7. MSAs in liability cases.
8. Settlement planning goes cyber.
9. Increasing need for Qualified Settlement Funds.
10. Increasing number of persons with disabilities.

Related Resources - SSP 2014 Annual Conference

• Part 1 - Secondary market panel.
• Part 2 - Conference summary.

National Structured Settlement Trade Association (NSSTA)

By inviting NASP President Patricia LaBorde and SSP President Neil Johnson to speak at its members-only 2014 Fall Educational Conference, NSSTA took a symbolic step toward restoring its original vision as articulated by David Ringler, NSSTA's first president: "a place where everyone and anyone can sit down with each other and discuss the issues and viewpoints regardless of beliefs is the most important reason for NSSTA."

For the past several years, NSSTA's leadership has superimposed a political litmus test for membership, as well as for topics and speakers at its educational conferences. NSSTA's near-sighted strategy has limited the potential growth of structured settlements within the larger and more complex settlement planning market and created multiple challenges for the next generation of structured settlement leaders.

Structured settlements, however, represent a core settlement planning product with emerging product improvements and nontraditional products demonstrating the potential for settlement planning market expansion. In addition, NSSTA's Fall conference underscored, and re-enforced, NSSTA's and NSSTA members' strategic settlement planning relationship knowledge about and with: 1) plaintiff attorneys; 2) insurance associations; 3) insurance claims adjustors; 4) national consumer associations; 5) U.S. Congressional members; and 6) MSA administrators - as well as with SSP and NASP.

Related Resources:

• NSSTA 2014 Fall Educational Conference
• Potential "Game Changing" Structured Settlement PLR
• Structured Settlements 2014 - Primary Market

National Association of Settlement Purchasers (NASP)

Assuming settlement planning includes adjustments during an injury victim's lifetime, structured settlement transfer (factoring) companies should be included among settlement planning participants. Like NSSTA, its primary market counterpart, NASP and its members face serious challenges which NASP president Patricia LaBorde acknowledged during NASP's 2014 Annual Conference.

"There are some forces working against us right now" Laborde stated, "and we need to remain diligent so our customers (structured settlement recipients who sell payment rights to NASP member companies) continue to have access to liquidity." These "negative" forces include predicted secondary market "chaos" resulting from the Washington Square v. RSL case as well as market restrictions resulting from anti-assignment lawsuits.

Shared educational dialogue among representatives of NASP, NSSTA and SSP during 2014 appear to support the possibility of increasing primary and secondary market integration as predicted by Peter Arnold during his NASP conference presentation.

Related Resources:

• NASP 2014 Annual Conference
• Structured Settlements 2014 - Secondary Market

Academy of Special Needs Planners (ASNP)

ASNP is one of three national associations of attorneys whose members practice special needs (SN) planning. SN planning encompasses individuals with congenital and developmental defects, as well as personal injury victims, and therefore represents a parallel market which overlaps with personal injury settlement planning.

For the past eight years, ASNP has sponsored some of the best educational programs addressing settlement planning topics including such fundamental issues as: "know your client", "needs analysis", "best practices", "industry standards" and "product suitability", as well as "professional responsibility, qualifications and liability".

Among other topics, the ASNP 2014 Conference expanded previous ASNP educational programs about the Patient Protection and Affordable Care Act (ACA aka "Obamacare") including a multi-professional "ACA Panel" consisting of: David Lillesand (attorney); Ann Koerner (life care planner); and Scott MacDonald (investment adviser).

Other settlement planning topics addressed during ASNP's 2014 Annual Conference:

• Blaine Brockman and Patricia Kefalas Dudek spoke about "Housing, Food Assistance, Employment Benefits" - critical topics for many people with disabilities which are rarely addressed at structured settlement and settlement planning educational conferences.
• Cynthia Barrett discussed "Post-Windsor Issues for LGBT Couples & Children" - another settlement planning subject other settlement planning conferences failed to encompass.

Expanding its settlement planning educational programs, ASNP is currently sponsoring a 12-part settlement planning webinar series which demonstrates both the growing importance of settlement planning for SN attorneys as well as the broad scope of settlement planning topics.

Related Resources:

• ASNP 2014 Annual Conference
• ASNP Settlement Planning Webinar Series
• ACA and Future Medical Expenses

National Alliance of Medicare Set-Aside Professionals (NAMSAP)

NAMSAP is the only national professional association whose singular focus is Medicare Set-Aside (MSA) arrangements. NAMSAP's growth has paralleled the expansion of workers compensation MSAs (WCMSAs) to satisfy the requirements of the Medicare Secondary Payer (MSP) Act. Enacted in 1980, the MSP Act requires certain insurers, including liability, automobile, no-fault and workers compensation insurers, to make payment first for services to Medicare beneficiaries regarding claimed injuries, with Medicare responsible only as a “secondary payer.”

The Center for Medicare & Medicaid Services (CMS) published a WCMSA Reference Guide (WCRG) on March 29, 2013 plus a WCRG Version 2.0 on November 7, 2013. Both address structured settlement issues and provide guidelines for their utilization. WCMSAs represent one of the few submarkets where structured settlements sales have increased since 2008 - in large part because the method CMS requires for calculating WCMSA present values provides an inherent cost advantage for annuities compared with lump sum alternatives.

CMS withdrew its Notice of Proposed Rulemaking (NPRM) related to liability MSAs in October 2014 because it failed to gain approval from the Office of Management and Budget (OMB). Therefore, settlement planners must continue to analyze each liability case individually to determine whether and how to protect Medicare's interests.

During NAMSAP's 2014 Regional Conference, Roy Franco predicted the following settlement planning changes likely to result from the Bipartisan Budget Act of 2013, implementation of the ACA and the still anticipated CMS rules for liability MSAs: "workers' compensation, liability and no-fault insurers will all become primary payers vis a vis Medicare, Medicaid and ACA health providers" as part of integrated settlement planning models similar to WCMSAs." Franco added, however, that different state models are likely to develop as a result of both state-specific collateral source rules and the new Medicaid reimbursement rules promulgated by the Bipartisan Budget Act of 2013.

Related Resources

• NAMSAP 2014 Regional Conference
  • Part 1
  • Part 2
• NAMSAP 2014 Annual Meeting
• Bipartisan Budget Act of 2013

Evolve Qualified Settlement Fund (QSF) Symposium

Organized "to provide a forum for open dialogue that helps shape industry developments", the 2014 Evolve QSF Symposium avoided the single claimant controversy and focused instead on other important QSF and settlement planning issues including:

• How QSFs reconfigure the traditional settlement planning process.
• QSF-related compensation issues for administrators and structured settlement brokers.
• The increasingly important settlement planning roles for life care planners and case managers.
• QSF-related tax issues such as state taxation, foreign structured settlement assignment companies and structured attorney fees.

Related Resources

• Evolve 2014 QSF Symposium
• Single Claimant QSFs Revisited
• "How the ACA Affects Nurse Life Care Planners"
• Wendie Howland Interview

National Academy of Elder Law Attorneys (NAELA)

NAELA was the first and remains the largest U.S. professional association focused on the needs of elder and special needs law attorneys. Responding to its own strategic challenges, NAELA organized its 2014 Annual Conference to address what it perceives to be its two primary strategic issues: 1) the future needs of persons with disabilities; and 2) the future of elder law.

Compared with ASNP, however, NAELA's educational programs rarely address settlement planning or structured settlements. When NAELA members discuss special needs planning, many tend to think about developmental (as opposed to personal injury) disabilities. Unfortunately, many NAELA members view structured settlements negatively despite familiarity with the concept and a general affinity for annuities.

Related Resources

• NAELA 2014 Annual Conference
• Person-Centered Planning
• Cornell Disability Studies, Research, Statistics

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.

ASNP 2011 Annual Meeting

The Academy of Special Needs Planners (ASNP) hosted its Fifth Annual Conference March 11-12, 2011 in San Francisco. Co-chaired by Kevin Urbatsch and Michael Gilfix, the 2011 ASNP conference highlighted a growing knowledge gap between traditional structured settlement consultants (many of whom aspire to be settlement planners) and special needs attorneys (whose professional focus increasing includes settlement planning).

ASNP is one of three national associations of attorneys, the others being the Special Needs Alliance (SNA) and the National Academy of Elder Law Attorneys (NAELA), whose members engage in special needs planning. The primary difference between special needs planning and settlement planning is that special needs planning includes clients whose disabilities result from many causes including but not limited to personal injury or workers compensation accidents.

Beyond the quality of speakers and value of topics, ASNP conferences provide exceptional educational experiences for three additional reasons:

• Handout materials - Whereas most speakers at structured settlement conferences provide attendees with a power point handout or no written handout, most ASNP speakers provide attendees with original, topic-specific professional papers (in addition to outlines and/or power points) captured on a digital thumb drive.
• Sponsors and Exhibitors - Among the several national conferences S2KM attends, ASNP and NAMSAP provide the best interaction among sponsors, exhibitors and attendees. ASNP's interaction includes designated breaks when attendees are encouraged to meet with sponsors and exhibitors as well as designated tables for sponsors and exhibitors during lunch to promote extended and focused discussions.
• Knowledge of Attendees - Because ASNP conference attendees are special needs attorneys who already share a relatively high level of common professional knowledge, ASNP speakers have the freedom to expand the collective knowledge domain of attendees rather than merely reinforce existing shared knowledge.

ASNP's 2011 Speakers and Highlights

• Vincent Russo - Alternatives to Special Needs Trusts - Russo, one of ASNP's founders, highlighted planning uncertainties that justify consideration of alternative special needs strategies. In the context of such uncertainties, including life expectancies plus changes in Medicaid and estate tax laws, Russo utilized videotaped case examples to discuss several alternatives to SNTs.
• Robert Wood - Qualified Settlement Funds - Wood is a frequent speaker at structured settlement and settlement planning events. His ASNP presentation addressed single claimant QSFs and attorney fee QSFs including bad fact patterns, abusive cases and alternative definitions for "multiple claimants". Wood also discussed practical QSF issues such as the termination process, what to do with left-over assets and QSF administrative costs. Except for abusive cases, Wood believes the IRS actually likes QSFs.
• Rafael Gonzales - MSAs and Special Needs Planning - Gonzales' presentation addressed mandatory insurer reporting, conditional payments and Medicare set-aside arrangements. MSA's have become a frequent topic at almost every structured settlement and settlement planning conference - and with good reason given the many and frequent new developments. Gonzales' presentation featured summaries of the most recent case law, regulatory developments and legislative proposals.
• David Lillesand - SSI Update - Lillesand's annual Social Security Income summary for ASNP included detailed analysis of Social Security Regional Chief Counsel precedents for 2009 and 2010 some of which impact structured settlements used to fund SNTs. Lillesand also highlighted three new POMs for SNTs. Based upon his review of recent Social Security rulings, Lillesand identified a potential new issue for attorneys - expanded circumstances when legal fees are subject to Social Security approval.
• Patricia Dudek - Creative Housing Solutions - Although disabled persons historically have had few options for home ownership, home ownership is now a more realistic possibility according to Dudek. Her presentation summarized existing federal housing programs as well as financial and legal strategies for achieving home ownership for persons with disabilities.
• Cynthia Barrett - How Health Care Reform Impacts Persons with Disabilities - Barrett's discussion summarized the new Federal health care legislation and advised ASNP attendees about how to adjust their professional practice. Of special interest to structured settlement and settlement planning professionals, Barrett highlighted and discussed the questions plaintiff attorneys are most likely to ask about health care reform.
• David Foster Koth and Gregory Finn - Selecting Corporate Trustees - Among the many issues discussed during this presentation, the portion addressing structured settlement issues was among the best and most interesting. In the context of allocating trust investments among different financial vehicles, the co-presenters provided a balanced perspective on the advantages and disadvantages of structured settlements as well as the role of the secondary structured settlement market.
• Ruth Phelps - Community Funded SNTs - When a community establishes a special needs trust, several important planning considerations exist. Phelps used a case example to discuss these issues and offer a model planning solution.
• Professor Hank Greely - Diagnostic Genetic Testing - Greely, a leading expert on health law and the biosciences, summarized recent genetic testing developments including the impact of genetic testing for civil litigation (future medical costs) and insurance (age ratings).
• Michelle Ward - IRA Tax Planning - Ward provided a detailed analysis of IRA taxation focusing on distribution options and existing Federal regulations under IRC § 401(A)(9)..

Congratulations to ASNP for another outstanding educational program.

For S2KM reporting about past ASNP conferences and other settlement planning and structured settlement professional associations, see S2KM's structured settlement wiki.

NAELA Special Needs Summit - 3

This S2KM blog post strategically analyzes the National Academy of Elder Law Attorneys (NAELA) 2010 Special Needs Summit from an Internet-based knowledge management (KM) perspective. The NAELA Special Needs Summit occurred February 25-27 in New Orleans. Prior S2KM blog posts summarized the NAELA Special Needs Summit and analyzed the NAELA Special Needs Summit from a structured settlement perspective.

This S2KM review also considers a March 9, 2010 Web 2.0 webinar for NAELA members by Mark Miller titled "Web 2.0: The Good, the Bad and the Ugly". Miller is Chief Operating Officer of ElderLawAnswers; General Manager of Lawyers Life Network; and Director of Operations and Business Development for the Academy of Special Needs Planners. Miller has more than 15 years experience in sales and business development for web-based service providers.

Positives

• Knowledge resources - Whether the subject is elder law, special needs law or personal injury settlement law, NAELA's membership possesses substantial knowledge resources. Specific to disabled persons, NAELA's knowledge encompasses technical legal knowledge as well as relationship knowledge with disability leaders and disability community stakeholders.
• Knowledge culture - NAELA promotes and prioritizes legal scholarship. Examples include: the NAELA Journal and NAELA's annual writing prize for law students. NAELA promotes and practices knowledge sharing. NAELA's unprograms offer a non-hierarchical and interactive learning alternative to traditional lectures. Compared with traditional lectures, NAELA's unprogram learning model is more comparable with how collaborative learning occurs on the Internet.
• Focus on web 2.0 - NAELA has identified and offered learning resources on web 2.0 and social network technologies. In addition to Mark Miller's March 9, 2010 web 2.0 presentation, NAELA also featured S2KM's web 2.0 for lawyers wiki at its 2008 National Symposium.
• Mark Miller's web 2.0 presentation - Miller's 90 minute web 2.0 presentation was comprehensive. It highlighted many web 2.0 features, tools, and developments and offered advice for NAELA members about blogging; podcasting; web-site design; search engine optimization; news feeds; key word searches; social media; and emerging tools.
• Web 2.0 examples - a growing number of NAELA members, and non-NAELA special needs attorneys, have experimented with web 2.0 tools - especially blogs and podcasts. Examples of special needs and elder law blogs:
  • Harry Margolis
  • David Lillesand
  • Frank Johns
  • Patricia Kefalas
  • John Campbell

Negatives

• Web 2.0 learning disconnect
  • Neither the NAELA Special Needs Summit nor Miller's web 2.0 webinar made any attempt to integrate the web 2.0 medium itself into their learning programs.
  • If "the medium is the message" (to quote Marshall McLuhan), NAELA has not yet processed or responded to that message from a web 2.0 learning perspective.
  • NAELA's conference was typical of almost all professional association education conferences. Learning takes place in multi-purpose hotel meeting rooms with no Internet resources or integration. Laptops are discouraged by the general failure to provide power outlets. With the notable exception of NAELA's unprograms, the speakers lecture with limited audience interaction. Supplemental learning resources include power points, hardcopy handouts or web 1.0 flash disks.
  • Miller's web 2.0 webinar utilized a traditional web 1.0 powerpoint. His extensive presentation was lecture format with limited interactivity and no asynchronous features.
  • Typical of most introductions to the Internet, Miller's web 2.0 webinar focused primarily on identity and marketing - with no discussion about whether and how web 2.0 can enhance and accelerate learning or what learning issues and strategies occur with web 2.0.
  • As one example of a web 2.0 learning issue, many college professors (the paragons of old school learning) are banning laptops from their classroom and view in-class Internet surfing as a distraction. These paragons, however, typically lack any ability to integrate discussions (example: Socratic teaching) or Internet resources into their classroom experience. Their teaching model is a hierarchical lecture which is contrary to how the web 2.0 Internet functions.
  • Teaching web 2.0 using web 1.0 (or predecessor technologies) is akin to trying to teach people to swim or play basketball in a traditional classroom - using hardcopy text with no diagrams - instead of utilizing a swimming pool or a basketball court. After an hour or a semester in the classroom, the students still won't be able to swim or play basketball.
• Role of knowledge management
  • NAELA's members all qualify as knowledge workers. Without specifically studying knowledge management, NAELA has spent 25 years helping its members identify, expand and manage knowledge.
  • The changing Internet medium (currently web 2.0 featuring social network technologies) prioritizes knowledge and how you manage knowledge:
    • Knowledge generally becomes more transferrable and complex.
    • New knowledge tools, systems, networks, teams and leaders emerge.
    • New business models evolve requiring online skill sets and related knowledge services.
  • Unless NAELA and its members study and understand Internet-based knowledge management, how will they successfully transfer their professional knowledge (including relationship knowledge) to web 2.0?
  • And what happens to those professionals and professional associations who are slow (or unable) to successfully transfer their knowledge to the Internet? How will they compete? Who will want (or allow) them to participate on Internet-based knowledge teams and networks?
  • Neither Miller's web 2.0 webinar nor NAELA's first-ever Special Needs Summit discussed knowledge management.
  • How could knowledge management have improved the NAELA Special Needs Summit? As one example, the NAELA Summit made no attempt to define special needs law or to differentiate special needs law from elder law or personal injury settlement law. NAELA could have used (and still could use) various types of knowledge maps to:
    • Define these strategically important knowledge domains and related knowledge boundaries;
    • Identify stakeholders and online learning resources within each community of practice;
    • Highlight transactional events and transferable knowledge opportunities for NAELA members within each knowledge domain.

Unsolicited Recommendations for NAELA

• Continue to study Internet-based knowledge management - focusing on web 2.0 and social network technologies.
• Develop a web 2.0 learning strategy:
  • Utilizing appropriate learning environments, teachers and tools.
  • Introducing participants to online culture, organizational theory and functional skill sets through actual experience.
  • Integrating web 2.0 learning into NAELA's other educational programs.

For Additional Information see:

• Denham Grey's KM wiki
• S2KM prior blog posts
  • Web 2.0 for Lawyers Concept Map - featuring Barbara Bowen
  • Knowledge Management and Structured Settlements

Web 2.0 Update

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

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

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

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

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

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

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

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

LBN Developments

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

Luis Suarez' Article

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

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

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

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

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