Beyond Structured Settlements

Ohio NAELA 2012 UnProgram

For the past several years, the National Academy of Elder Law Attorneys (NAELA) has featured "UnPrograms" as part of its educational curriculum. Earlier this week, Patrick Hindert, S2KM's primary blog author and a NAELA member, attended the Ohio NAELA 2012 UnProgram as a participant.

What is an UnProgram? NAELA's UnPrograms are moderated group discussions about specific topics. The topics typically are identified in advance and the discussions are informal. The handouts for the NAELA Ohio Chapter's 2012 UnProgram were limited to: a list of topics; suggested "Ground Rules", and a one-page evaluation form.

Compared with traditional conference lectures and panels, NAELA's UnProgram discussions are informal and encourage participation by all attendees.The discussions frequently focus on practice issues or actual cases and result in the exchange of ideas and best practices.

Based upon S2KM's limited experience with UnPrograms, these discussions seem to work best with less than 15 participants per topic. For larger groups, participants select from among multiple discussions which occur simultaneously and require space planning. Although it helps to have a moderator with specific subject matter expertise, subject matter experts inevitably emerge during the discussions. Individual discussions can vary in time allotments.

The agenda for the Ohio NAELA two day UnProgram featured topics suggested in advance by participants:

• Increasing efficiency and profits with technology.
• Cloud computing.
• How to market and expand an Elder Law practice.
• How Elder Law and Special Needs Law differ.
• Using care managers.
• Medicaid issues - planning scenarios; estate recoveries; eligibility issues; appeals process; spend down options; annuities; promissory notes; home exemption.
• Veterans benefit issues - planning priorities; irrevocable trusts; proposed pension legislation.
• Special pensions.
• Structured settlements and settlement planning.

Some of the "Ground Rules" for the Ohio NAELA UnProgram:

• Participants are encouraged to be polite and warned not to interrupt other participants.
• Participants are encouraged to ask any and all appropriate questions.
• Participants can politely decline to answer any questions.
• Discussions about fees and other issues that violate anti-trust law are prohibited.
• All other ideas are welcome and encouraged.
• The moderator is directed to monitor individual input to encourage broad participation.
• Break out sessions are suggested if and when a subset of participants want to discuss a specific subtopic or related topic.
• When participants become disinterested in a discussion topic, they are encouraged to move to another group.
• Groups are not expected to backtrack when new participants are late entering a discussion.
• Individual participants are encouraged to continue discussions during breaks and meals.

Although Ohio NAELA's UnProgram organizers did not attempt to integrate Internet use or Internet resources into the 2012 UnProgram, the UnProgram's informal, horizontal format appears well-suited for both synchronous and asynchronous Internet adaptibility. Private wikis with discussion features could prove especially valuable for organizing, capturing and leveraging the considerable knowledge generated by the Ohio NAELA UnProgram.

Additional resources and information about Internet-based knowledge management (KM):

• For attorneys - see the public wiki and related concept map (with embedded links) S2KM developed with Denham Grey and Barbara Bowen in 2006 introducing web 2.0 for lawyers.
• For structured settlements - see the structured settlement wiki.

SSP and NSSTA 2011 Annual Meetings - 6

Both the Society of Settlement Planners (SSP) and the National Structured Settlement Trade Association (NSSTA) featured internet experts as part of their 2011 educational programs.

SSP's speakers, Mark Wahlstrom and Joe Didier, focused primarily on internet marketing and recommended expanded business use of web-based social media tools such as podcasts, blogs, Facebook, Twitter and Linkedin. Wahlstrom offered one especially insightful and negative cultural observation about the structured settlement industry as it attempts to transition from pre-internet to web-based business models, processes and skill sets: "We do not share ideas well in our industry."

NSSTA's speaker, LuAnn Reeb, also discussed internet marketing and social media tools in the context of "business communications today". Her emphasis, however, was more on the importance of learning web-based skill sets and how web-based conversations are replacing traditional one-directional marketing techniques.

How far structured settlement stakeholders must still go to successfully transition their business to the Internet was summed up humorously by one SSP wag who asked speaker Didier at the conclusion of his presentation: "So, are you saying that this Internet thing is really important?"

Assuming the answer is "yes", neither SSP nor NSSTA has articulated any identifiable learning strategy to help members transition from pre-internet to web-based business models, processes and skill sets. At best, their 2011 educational programs will encourage some members to sign-up for Linkedin, Twitter, or Facebook.

S2KM comments and recommendations:

• The structured settlement and settlement planning industries currently function primarily using old (pre-internet) business models, rules, skill sets, tools and culture.
• Web-based business activity introduces new business rules, creates new business models and culture, and requires new skill sets and tools.
• In the words of Kevin Kelly, an internet business pioneer: “as innovation accelerates, abandoning the highly successful in order to escape from its eventual obsolescence becomes the most difficult and yet most essential task.”
• Lectures represent an ineffective teaching method for learning Internet skill sets and tools.
• To help their members accelerate and improve their business transition to the internet, SSP and NSSTA could:
  • Place a greater educational priority on helping members understand the Internet business environment and learn web-based skill sets and tools.
  • Sponsor related workshops utilizing appropriate educational venues. See, for example, The METS Center.
  • Begin utilizing web-based tools (other than email and listserves) to improve committee functions and teach committee members how to collaborate online.
  • Encourage more members to publish, read and subscribe to online blogs, podcasts and wikis.
  • Expand (or create) references in Wikipedia for "structured settlement", "settlement planning" and related vocabulary.
• Advice for structured settlement and settlement planning stakeholders who consider themselves knowledge workers and want to successfully transition their knowledge and work processes to the internet - with or without assistance from SSP and NSSTA:
  • Learn more about web 2.0 and web-based knowledge management (KM).
  • Identify (inventory and/or map) your personal and collaborative (company; industry) knowledge.
  • Learn how to capture your knowledge in formats you can publish and share online (publicly and/or privately).
  • Identify and connect with online knowledge leaders and resources for structured settlements and/or settlement planning.
  • Learn more about web-based organizational concepts such as personal KM, social networks, communities of practice (COPs) and folksonomies.
  • Learn to utilize web-based cultural best practices such as knowledge sharing and continuous learning.

For visual examples of how one company captures structured settlement knowledge, see this Flickr page created by The Settlement Services Group (TSSG). Click on individual diagrams to enlarge.

For complete S2KM reporting about the SSP and NSSTA 2011 annual meetings, see the structured settlement wiki.

Structured Settlements in 2010 - 2

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

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

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

Professional associations

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

Industry leaders

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

Industry commentators

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

Legislation

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

Regulations

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

Case law

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

Technology

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

Public policy

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

Business standards and practices

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

Business models

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

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

Structured Settlement Public Policy - 1

The Society of Settlement Planners (SSP) has invited Patrick Hindert, Managing Director of S2KM Limited and The Settlement Services Group (TSSG), to organize a discussion about "Structured Settlement Public Policy" for the SSP 2010 Annual Meeting May 3 in Washington, D.C.

For additional information about the SSP and NSSTA 2010 Annual Meetings, see this prior S2KM post.

S2KM's objectives:

• Improve and grow the structured settlement market.
• Promote public discussions about structured settlement public policy. S2KM has previously published a structured settlement public policy wiki featuring Joseph Dehner, Robert Wood and Jeremy Babener.
• Invite and challenge the best and brightest structured settlement knowledge experts to:
  • Attend the SSP 2010 Annual Meeting; and
  • Participate in a public discussion about structured settlement public policy.

Preliminary public policy questions - also posted on S2KM's public policy wiki.

• What is a structured settlement?
  • Google search
  • wikipedia definition
  • transaction diagram
• What does "public policy" mean generally - and specifically for structured settlements?
• Why is public policy important for structured settlements?
• Who and what defines structured settlement public policy?
• What changes have occurred in structured settlement public policy?
  • Before 1982
  • Between 1982 and 2000
  • Since 2001
• Based upon existing structured settlement public policy, what constitutes best business practices, bad business practices and illegal business practices?
• What are the most important structured settlement public policy issues?
• Does structured settlement public policy support:
  • Single claimant IRC section 468B qualified settlement funds?
  • Court-approved structured settlement factoring transactions pursuant to IRC 5891 and state structured settlement protection statutes?
  • Tax exclusions for non-physical injuries as well as physical?
  • Tax credits rather than the current tax exclusion?
• How many structured settlement recipients pay federal income taxes - or gain any financial advantage from the structured settlement tax exclusion?
• Do personal injury victims have a greater propensity to dissipate their financial resources than non-personal injury victims?
• Or, does public policy actually require and promote dissipation by injury victims and other disabled persons? For example, Medicaid asset requirements and resulting asset "pay down" strategies.
• Should the existence of the secondary market disqualify annuities as a funding option for special needs trusts?
• Does the Deficit Reduction Act of 2005 apply to structured settlement annuities?
• Why should structured settlement annuities cost less than lump sum alternatives to fund Medicare set-aside arrangements (MSAs)?
• How has health care reform changed structured settlement public policy?
• Does public policy support expanded use of the Internet for marketing, communication, education and collaboration? If yes, how does the Internet and Internet public policy impact the future of structured settlements?
• How can SSP members and attendees influence structured settlement public policy?
• How can members of NSSTA, SSP, NASP, NAMSAP and NAELA better identify and promote their collaborative public policy knowledge and shared public policy interests?
• Should the structured settlement industry encourage public policy analysis and promote best business practices in the context of public policy?
• Does public policy analysis and promotion of best business practices strengthen or weaken the structured settlement industry?

For additional S2KM reporting about SSP and NSSTA, see:

• S2KM's blog post titled "SSP and NSSTA 2010 Annual Meetings" and
• S2KM's structured settlement wiki.

25 Questions to Evaluate Pooled Trusts

Health care reform (Patient Protection and Affordable Care Act), enacted on March 23, 2010, has re-defined the structured settlement and personal injury settlement consulting marketplace: whether current participants realize it - or (more probably) do not.

Among the strategic consequences of health care reform:

• An estimated 16 million more Medicaid participants - and therefore:
• More special needs trusts;
• More special needs attorneys;
• More structured settlement annuities payable to trustees.

Without focusing specifically on health care reform (not then enacted), the ASNP 2010 Annual Meeting included valuable presentations and handout resources indirectly related to health care reform, structured settlements and settlement planning/consulting.

Among those valuable presentations was Evan J. Krame's analysis titled "Not Very Special Trusts: Fixing Trusts to be Special and Using Pooled Trusts". As part of his ASNP trust analysis, Krame introduced a document he wrote titled "25 Questions to Evaluate Pooled Trusts".

In addition to his legal practice and teaching activities, Krame serves as President of Shared Horizons, Inc. Shared Horizons is trustee of the Wesley Vinner Memorial Trust (a pooled trust) serving people with disabilities in the District of Columbia and Maryland.

Krame has granted permission for S2KM to re-publish his list of 25 Questions here in S2KM blog format.

Trust Structures

• Check the Trust Agreement and Joinder Agreement? What do the documents say? For example, what powers does the trustee have?
• Is the trust approved and monitored by any state agencies?
• Who/what is really serving as the trustee? Is it the non-profit organization that created the trust or is it a third party hired to administer the trust?

Is this Trust Right for You?

• What are the costs of participation? Is there an initiation fee, an annual fee or a termination fee?
• How are the disbursements approved? What is the ease and method of disbursements? Who signs disbursement checks?
• What is the availability of advocacy on behalf of the beneficiary?
• How do they manage public benefit issues?
• How do they monitor the beneficiaries?
• Will the trust own illiquid or uncommon assets such as cars or homes?

Trust Management

• What is the reputation of the non-profit and/or trust management organizations?
• What is the organizational structure? Check on staff, space and activities.
• Who are the officers of the non-profit? What are their skills and background?
• What is the function of the board of the non-profit trustee?
• How long has the trust been in existence? Is there any reason to believe it could fail? How appropriately is the pooled trust compensated?
• How are the trust assets invested? Is there an investment policy in force that is followed? Is there an independent investment adviser? Is there an investment review committee? Is there an allocation model?
• How do they maintain separate shares? Do they uphold the duty to segregate?
• Is there liability and casualty insurance in place?
• How do they meet their duty to inform? Are statements provided to beneficiaries and state agencies (as required)?
• How do they meet their duty to account?
• How do they maintain their records? Are they precise, complete and accurate?
• How do they meet their duty of confidentiality?
• Do they have and/or employ legal counsel?
• Are there termination procedures in place?
• What is the policy as to funds at the death of a beneficiary?
• How do they handle income tax reporting?

Additional S2KM resources about settlement trusts:

• Settlement trusts re-visited
• Settlement trusts
• Single claimant 468B funds
• Selecting a settlement trustee
• Settlement trust due diligence
• Special Needs Trusts X
• Richard Halpern

ASNP 2010 Annual Meeting

The Academy of Special Needs Planners (ASNP) hosted its 2010 Annual Meeting in Charleston, South Carolina March 18-20, 2010. More than 100 special needs attorneys participated as well as nine exhibitors. MassMutual Financial Group was the program sponsor.

The timing of the ASNP 2010 conference was historically significant. It followed by less than one month NAELA's Special Needs Summit and occurred just days prior to enactment of United States Health Care Reform (Patient Protection and Affordable Care Act) on March 23, 2010.

Topics and Speakers

• "Living with Autism" study - Joanne Gruszkos introduced a new study about autism, conducted by Easter Seals with sponsorship from MassMutual. The study addresses family issues and challenges related to life care planning for autistic individuals.
• Special needs trusts - Professor Jeffrey Pennell deconstructed a typical third party special needs trust from a tax and trust attorney perspective, then joined a panel including special needs attorneys Michele Fuller and Kevin Urbatsch to reconstruct the same trust from a more holistic viewpoint. Evan Krame discussed how to fix trusts to make them qualify for special needs purposes and also offered guidance in using pooled trusts. Krame's handout materials included a useful guide titled "25 Questions to Evaluate Pooled Trusts".
• SSI and SSDI Updates - David Lillesand summarized developments impacting Social Security including extensive and valuable reference materials featuring charts, diagrams and recent regulatory rulings.
• Marketing for Special Needs Attorneys - Harry Margolis and Vincent Russo discussed traditional and non-traditional methods for special needs attorneys to market their expertise. Margolis' non-traditional analysis complemented an earlier NAELA webinar by ASNP COO Mark Miller. Margolis provided an introductory overview of web 2.0 including recommendations about specific social networking tools.
• IRC 468B Qualified Settlement Funds - Jason Lazarus re-introduced QSFs emphasizing practical applications as well as expanding professional opportunities for special needs attorneys in settlement planning. Lazarus addressed current political issues impacting the use of QSFs in single claimant cases.
• Special Needs Advocacy and Litigation - Patricia Harrison spoke generally and summarized historically federal and state based special needs litigation. Saundra Gumerove spoke more specifically about special education advocacy and litigation.
• Additional topics - Sanford Mall spoke about Military and Veterans benefits as increasingly important for special needs planning. Mall separately addressed how to obtain and coordinate funding for healthcare. Dr. Harriett Mall discussed the psychology of poverty.

Congratulations to ASNP 2010 program co-chairs Frank Johns and Franchelle Millender for continuing ASNP's high standard of educational excellence. In addition to interesting topics and speakers and valuable handout materials, ASNP conferences are also characterized by their well-qualified attendees and informative exhibitors with whom ASNP provides substantial opportunities for interaction.

Prior S2KM blog posts about the Academy of Special Needs Planners (ASNP) - which are also accessible on S2KM's structured settlement wiki:

• 2009 ASNP Annual Meeting
• 2008 ASNP Annual Meeting
• 2007 ASNP Annual Meeting

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

NAELA's Special Needs Summit - 2

This S2KM blog post strategically analyzes the National Academy of Elder Law Attorneys (NAELA) 2010 Special Needs Summit from a structured settlement perspective. A prior S2KM post summarized the NAELA Special Needs Summit. A subsequent S2KM post will strategically analyze the NAELA Special Needs Summit from the perspective of Internet-based knowledge management.

For related S2KM learning resources, see S2KM's public read-only wikis:

• Structured settlement
• Structured settlement public policy
• Web 2.0 for lawyers

From a structured settlement perspective, the strategic business overlap with special needs attorneys encompasses disabled personal injury victims, their families and trial attorneys. Various knowledge leaders, knowledge networks and communities of practice within this strategic business and public domain utilize alternative terminology to describe their businesses without comparative analysis of the terminology itself. Here are some recommended resources to help special needs attorneys understand this growing legal market segment:

• Settlement law - hardcopy textbooks:
  • Robert W. Wood
    • "Taxation of Damage Awards and Settlement Payments"
    • "Qualified Settlement Funds and 468B"
  • Matt Garretson: "Negotiating and Settling Tort Cases"
  • Stuart Zimring, Rebecca Morgan and Bradley Frigon: "Fundamentals of Special Needs Trusts"
• Structured settlement law - Daniel Hindert, Joseph Dehner and Patrick Hindert: "Structured Settlements and Periodic Payment Judgments"
• Settlement consulting - see S2KM's report and analysis of Joseph DiGangi's presentation at the 2009 NSSTA winter meeting.
• Settlement planning - see S2KM's report about the SSP 2009 conference.
• Special needs settlement planning - see S2KM's report about the ASNP 2009 conference and Tim Nay interview.

S2KM regularly attends and publishes reports summarizing and analyzing national educational conferences sponsored by selected professional associations and universities whose speakers and attendees participate within the strategic business overlap of structured settlements and special needs law:

• National Structured Settlement Trade Association (NSSTA)
• Society of Settlement Planners (SSP)
• National Association of Settlement Purchasers (NASP)
• American Association for Justice (AAJ)
• National Academy of Elder Law Attorneys (NAELA)
• Academy of Special Needs Planners (ASNP)
• National Alliance of Medicare Set-Aside Professionals (NAMSAP)
• Stetson Law School - Special Needs Trust conference

Strategic question: from a structured settlement perspective, what was most important about NAELA's first-ever Special Needs Summit? 

Strategic answer: None of the NAELA speakers or unprograms:

• Attempted to define "special needs law" or any of its ancillary legal and business domains.
• Addressed any of the following structured settlement legal priorities and developments - all of which are strategically important for special needs attorneys:
  • IRC sections 104(a), 130, 468B or 5891;
  • Treasury Hearings for IRC 104(a)(2) regulations
  • Treasury 2009-10 Priority Guidance Plan - dropping single claimant 468B.
  • Spencer v. Hartford class action lawsuit - alleging civil RICO violations.
  • Unauthorized practice of law
  • Dissipation studies
  • Single claimant 468B funds
  • Executive Life of New York
  • Secondary structured settlement annuity market:
    • State structured settlement protection statutes.
    • J.G. Wentworth bankruptcy
    • Fresno County factoring cases
    • Rapid Settlements arbitration model
    • California protection statute amendments - including "best interest" definition

Why should special needs attorneys be interested in structured settlement law? This S2KM structured settlement diagram summarizes a complex legal and financial transaction that requires special needs legal knowledge, documentation and representation and also presents business and career opportunities for special needs attorneys:

• IRC 468B qualified settlement funds
• IRC 130 qualified and non-qualified assignments
• Special needs trusts
• Medicare set-aside arrangements
• Structured settlement transfers

Additional S2KM structured settlement resources for special needs attorneys interested in learning more about structured settlement law:

• Market surveys
• Growing the market
• Structured settlements in 2009
• structured settlement wiki
• structured settlement public policy wiki.

S2KM's next blog post will analyze NAELA's Special Needs Summit from an Internet-based knowledge management perspective.

NAELA's Special Needs Summit - 1

More than 25 years following its formation, the 5,000 member National Association of Elder Law Attorneys (NAELA) hosted its first-ever "Special Needs Summit" in New Orleans February 25-27, 2010 acknowledging what many NAELA members have understood for years - special needs law is a separate and fast-growing ancillary component and legal domain strategically related to elder law.

The highlight of NAELA's first Special Needs Summit was NAELA's awarding and honoring Dick Traum as the first recipient of NAELA's Special Needs Leadership Award. Traum is the founder and CEO of Achilles International, a non-profit organization providing community support for athletes with disabilities. Achilles International, with members in more than 70 countries, has recently developed specialized running programs for disabled children and wounded war veterans.

The educational component of NAELA's first Special Needs Summit featured NAELA's extensive knowledge resources and positive knowledge sharing culture. NAELA's educational program complemented, expanded and updated recent annual conferences presented by the Academy of Special Needs Planners (ASNP), the National Association of Medicare Set-aside Professionals (NAMSAP) and Stetson Law School as previously reported by S2KM.

NAELA's educational conferences regularly feature sections or entire programs titled "unprograms". NAELA's unprograms are moderated group discussions about specific topics. NAELA's Special Needs Summit included six separate one hour unprograms with a concluding unprogram wrap-up session. One example of an unprogram in New Orleans was titled "Collaboration Opportunities for Special Needs Attorneys and Financial Planners".

Other topics discussed at NAELA's Special Needs Summit:

• Special needs public policy and legislative issues
• Communicating with the disability community
• Pooled trusts
• Social security applications
• Medicare secondary payer compliance
• National project for state reviews of special needs trusts
• Veterans benefits
• Special needs law case update
• Emergency preparedness
• Independent community housing
• Divorce of parents with a special needs child
• Special education law
• Self-settled third party special needs trusts
• Fair Housing Act
• Serving on a non-profit Board of Directors

Congratulations to NAELA's Special Needs Summit Co-chairs: Joan Lensky Robert, Stephen Dale and Howard Krooks, and NAELA's Program Director, Casey Anderson, for organizing an historic and educational special needs conference.

In a subsequent blog post, S2KM will publish its analysis of the NAELA Special Needs Summit utilizing two strategic perspectives: structured settlement and Internet-based knowledge management.

For prior S2KM reporting about NAELA conferences, see S2KM's structured settlement and web 2.0 for lawyers wikis.

Structured Settlements in 2010 - 1

2010 promises to be an important year for the structured settlement industry.

Strategic structured settlement priorities for 2010:

• Public policy - what laws currently define structured settlement public policy and how do these laws impact:
  • 468B qualified settlement funds;
  • Non-qualified 130 structured settlements;
  • Structured settlement factoring transactions?
• Legislative reform - how will anticipated new legislation change structured settlements:
  • Health care reform;
  • Financial reform;
  • Tax reform?
• Business standards and practices - what business standards and practices will prevail following:
  • SSP's Standards of Professional Conduct;
  • Spencer v. Hartford;
  • J.G. Wentworth's re-emergence from bankruptcy;
  • Fresno County factoring cases and California SB 510
    
• Business models - who will create new business models and success metrics for:
  • Structured settlement claim management;
  • Settlement consulting;
  • Structured settlement secondary market;
  • Internet-based structured settlements?

Professional association meetings - S2KM will report structured settlement and settlement consulting educational results from four (4) professional association meetings during the first six (6) months of 2010:

• NAELA Special Needs Summit - February 25-27 in New Orleans;
• ASNP Annual Meeting - March 19-20 in Charleston, S.C.
• SSP Annual Meeting - April 27-28 in Washington, D.C.
• NSSTA Annual Meeting - May 4-6 in Washington, D.C.

For prior S2KM reports about structured settlement and settlement consulting professional associations, see S2KM's structured settlement wiki.

For S2KM's most recent strategic analysis of the structured settlement industry, see S2KM's blog post "Structured Settlements in 2009".