Beyond Structured Settlements

ASNP 2017 Annual Conference

For the past 11 years, the Academy of Special Needs Planners (ASNP) annual conferences have consistently improved the educational scope and standards for an expanding professional landscape which, in addition to, and overlapping with, special needs planning, also encompasses personal injury settlement planning, including various types of settlement trusts as well as structured settlements, Medicare set-aside arrangements and life care planning.

ASNP's 2017 Annual Conference, which occurred March 23-25 in New Orleans, maintained its deserved reputation and also highlighted an increasing number of opportunities, issues and challenges for both the traditional structured settlement industry and the "emerging" personal injury settlement planning industry - relatively few of whose combined members have historically attended this, or other, national special needs conferences.

ASNP 2017 TOPICS AND SPEAKERS

PRE-SESSION

• Drafting the World's Best Special Needs Trusts - Kevin Urbatch; Nancy Chudacoff; Ray Falcon; Travis Finchum; Michele Fuller; Robert Mescali
• Online Marketing for Attorneys Intensive Workshop - Conrad Saam

MAIN PROGRAM

• Developments and Updates on Special Needs Topics - Blaine Brockman
• Ethically Representing Persons with Disabilities and their Families - Dr. Roberta Flowers and Sheila Moragas
• To SNT or not SNT: How to Systematically Review a Client's Situation to Provide the Best Advice - Travis Finchum and David Lillesand
• Understanding the Issues that Arise When Persons with Disabilities Interact in Family Law Situations - Emily Kile and Jennifer Kupiszewski
• Taxation Issues that Arise for Persons with Special Needs - Vincent Russo
• SSI Update - David Lillesand
• Ask the Experts Panel - Moderated by Kevin Urbatsch
• The Arc - Robin Shaffert

CONFERENCE HIGHLIGHTS - A STRUCTURED SETTLEMENT / SETTLEMENT PLANNING PERSPECTIVE

Legislative Developments - Multiple legislative developments addressed at the ASNP conference represent expanding business opportunities for structured settlement and settlement planning professionals.

• Affordable Care Act - The political future of the Patient Protection and Affordable Care Act (ACA) and Medicaid remain uncertain. In fact, House Speaker Paul Ryan pulled the Republican ACA replacement bill concurrent with the ASNP conference. At present, however, both the ACA and Medicaid continue to represent critical health care alternatives for disabled individuals as David Lillesand and Travis Finchurm discussed in their presentation "To SNT or not SNT". In discussing these options, Lillesand highlighted the need for a "cost benefit analysis" to determine whether advisors should recommend private health insurance or a special needs trust (SNT). Both d(4)(A) (self-settled) SNTs and ACA premium payments continue to represent excellent funding opportunities for structured settlements as well as important settlement planning considerations.
• Special Needs Trust Fairness Act - Blaine Brockman summarized Section 5007 of the 21st Century Cures Act - a section referred to as the "Special Needs Trust Fairness Act" (SNTFA), which was signed into law by President Obama on December 13, 2016. The SNTFA adds “the individual” to the list of persons/entities who can establish a special needs trust pursuant to 42 U.S.C. 1396p(d)(4)(A) and thereby corrected a long -standing oversight in the OBRA 1993 legislation that created SNTs. Among the anticipated results of the SNTFA: more self-settled special needs trusts with more opportunities for structured settlements.
• The Achieving a Better Life Experience (ABLE) Act - Since the Federal ABLE Act became law in December 2014, 18 states have opened ABLE programs. ABLE Accounts "seemed pretty simple at first", according to Brockman. However, "as programs have developed, accounts have opened, and people with disabilities have begun using ABLE funds," Brockman added "what seemed like simple financial accounts have given way to more nuanced issues about the best use of the ABLE Act." Brockman's presentation addressed many of these ABLE issues and confirmed that, in appropriate cases, ABLE accounts provide a valuable new tool for special needs and personal injury settlement planners. Although Brockman did not specifically address structured settlements, special needs attorney Stephen Dale will be speaking about ABLE Accounts (and presumably structured settlements) later this week at the National Structured Settlement Trade Association (NSSTA) Annual Conference.

Collaboration Opportunities

• Structured settlement annuities represent a strategic product within the larger and more complex personal injury settlement planning (settlement planning) market. From a legal perspective, special needs planning and settlement planning increasingly overlap. Settlement planning is now viewed as a growth opportunity by many special needs and elder law attorneys.
• Although their signature products are special needs trusts (SNTs), special needs attorneys play a variety of settlement planning roles (legal advisor; guardian; conservator; trustee; QSF administrator) and provide a variety of settlement planning products and services. Their expertise encompasses government benefits including: Social Security; Medicare; Medicaid; the ACA; ABLE Act; Veterans benefits; and public housing.
• ASNP's commitment to settlement planning has included a 12-part settlement planning webinar series (including a section on structured settlements) as well as its joint 2016 Annual Conference with the Society of Settlement Planners (SSP)
• Noticeable by their general absence from the ASNP conference, as speakers, attendees, exhibitors and/or sponsors, were members of NSSTA and SSP - which might be explained, in part, by the calendar proximity of their own annual conferences. In S2KM's experience, however, NSSTA and SSP members are also general "no-shows" at other national special needs conferences such as those sponsored by Stetson Law School and the University of Texas.
• By comparison: among the 17 exhibitors at the 2017 ASNP Annual Conference, there were at least: seven settlement trustees, one life care planner, one MSA administrator, and one seller of Medicaid annuities. The Platinum Sponsor of the ASNP Annual Conference was MassMutual, a life insurance company which exited the structured settlement market in 2007. MassMutual now appears to be the leading national special needs life insurance provider - focusing on developmentally disabled individuals and their families rather than personal injury victims. MassMutual acquired Metlife's retail advisory force in 2016 including its special needs division.
• Why should members of NSSTA and SSP attend national special needs conferences? For NSSTA (and its "Growth Initiative") and SSP (and its "Emerging Professionalism"), attendance and participation at national special needs conferences is important, of course, for education and marketing. Beyond those objectives, however, It is also about:
  • Understanding special needs and special needs planning - and how they impact structured settlements and settlement planning;
  • Identifying special needs knowledge leaders and collaboration partners;
  • Establishing (or re-establishing and improving) professional and association identities within the special needs community;
  • Recruiting "next generation" structured settlement and settlement planning professionals;
  • Improving multi-professional work product and building better business models.
  • Becoming part of the local, state and national special needs community - as described during the ASNP conference by Robin Shaffert, Senior Executive Officer of the Arc.

Standards, Practices and Certification - In addition to developments noted above, some progress is being made toward improving professional standards, practices and certification within both the special needs and settlement planning (including structured settlement) markets.

• MassMutual, which sponsors the American College of Financial Services Center for Special Needs , announced during the ASNP conference that the American College now offers a new Chartered Special Needs Consultant (ChSNC™) program. The Mission of the Center is "to elevate the knowledge of financial service professionals in the area of special needs planning." However, its new certification program does not appear to encompass structured settlements or settlement planning.
• In her ASNP discussion titled "Ethically Representing Persons with Disabilities and their Families", Professor Roberta Flowers referenced the proposed and newly revised "Aspirational Standards for Professionalism and Ethical Behavior for Elder and Special Needs Law" published by the National Academy of Elder Law Attorneys (NAELA) which NAELA will introduce to its members later this summer.
• During its 2017 Annual Conference, SSP announced a four-step plan to elevate settlement planning to professional status: 1) re-focusing SSP on professionalism; 2) updating SSP's Standards of Professional Conduct; 3) renewing and upgrading the RSP Designation program; 4) adopting and embracing new proposed SSP Practice Standards.
• NSSTA, as an association, has been slow to embrace "settlement planning" and to investigate "special needs planning." NSSTA, however, has recently formed a "Special Needs Attorney Task Force" and its 2017 Annual Educational Conference will feature an unprecedented (for NSSTA) three special needs attorneys as speakers. NSSTA is a major contributor to the American Association for People with Disabilities (AAPD) for which Eric Vaughn, NSSTA's Executive Director, currently serves as Vice Chairman. Ringler, a founding NSSTA member and historically the largest structured settlement broker, recently re-branded itself as "Objective Settlement Advisors" and now claims to be "the largest settlement planning company in the nation." NSSTA currently is updating its CSSC certification program and is expected to increase emphasis on government benefit issues.
• Important, but often overlooked, in discussions about special needs planning and settlement planning are life care planners. The two most prominent U.S. based life care planning professional associations are the International Association of Life Care Planners (IALCP) and the American Association of Nurse Life Care Planners (AANLCP). Both offer or promote certification programs.

CONCLUSION - For S2KM, the ASNP Conference continues to be a "must attend" annual event providing "top tier" analysis of special needs and settlement planning developments, valuable perspectives on structured settlements plus the opportunity to converse with industry icons and next generation leaders. For S2KM reports on past ASNP conferences, as well as other structured settlement and settlement planning national conferences, see the structured settlement wiki.

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.