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Structured Settlements in 2008 - 2

By Patrick Hindert

pThis S2KM blog post, the second of three analyzing structured settlements in 2008, summarizes conferences S2KM attended throughout the year. A prior post evaluated 2008 from an historical structured settlement perspective. A subsequent post will discuss challenges facing the structured settlement industry in 2009. Conferences and associations are listed alphabetically. strongFor more detailed reports/strong about these conferences, check the parenthetical links for related S2KM blog posts. For S2KM#39;s complete historical review of professional associations and conferences, see S2KM#39;s spana class=wiki_link href=http://structuredsettlement.wikispaces.com/Trade+associationsstructured settlement wiki/a/span./p pstrongAcademy of Special Needs Planners/strong (spana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/03/2008-asnp-annua.html rel=nofollowASNP/a/span) - The second annual ASNP conference underscored the strategic nexus that exists between special needs planning, settlement planning and structured settlements. ASNP#39;s quot;extra-curricularquot; program featured a social service project where 30 ASNP conference attendees assisted span class=wiki_link_extFamilies Helping Families/span of Southeast Louisiana repair and improve its office headquarters. The ASNP conference confirmed for this author why special needs attorneys and financial planners, as opposed to former life insurance salesmen and claim managers, represent the future of structured settlements and settlement planning. Although several NSSTA and SSP members attended and/or participated as speakers, most of the structured settlement industry missed this valuable conference./p pstrongAmerican Association for Persons with Disabilities/strong (spana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/03/2008-aapd-leade.html rel=nofollowAAPD/a/span) - Structured settlement leaders from both span class=wiki_link_extNSSTA/span and span class=wiki_link_extSSP/span attended the 2008 AAPD Leadership Gala dinner in Washington, D.C. - in addition to many Congressional and Disability leaders. NSSTA was one of the span class=wiki_link_extevent sponsors/span and had earlier featured strongAndrew J. Imparato/strong, AAPD President and CEO, as a speaker at NSSTA#39;s 2007 Fall Meeting. Imparato, a visionary and inspirational leader, is dedicated to transitioning disabled persons from poverty to economic self-sufficiency. AAPD#39;s strategy includes uniting disabled persons as a political block and business market. AAPD#39;s political priorities include changing the social security statutory definition of quot;emdisability/emquot; from quot;emunable to work/emquot; to address quot;embarriers to work/emquot; for disabled persons. Imparato#39;s message for structured settlement professionals: involve yourselves at the local level with emindependent living centers./em/p pstrongNational Academy of Elder Law Attorneys/strong (span class=wiki_link_extspana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/05/2008-naela-symp.html rel=nofollowNAELA/a/span/span) - NAELA#39;s Mission is quot;emis to establish NAELA members as the premier providers of legal advocacy, guidance and services to enhance the lives of seniors and people with disabilities/emquot;. NAELA#39;s membership consists of 4400 attorneys in the United States, Canada, Australia and the United Kingdom. Most of the members of ASNP and the Special Needs Alliance (SNA) are members of NAELA including many NAELA founders and former Presidents and Directors. S2KM developed a quot;spana class=wiki_link href=http://weblaw20.wikispaces.com/homeWeb 2.0 for Lawyers/a/spanquot; wiki for the NAELA 2008 Symposium which was also featured in a strongLegal Broadcast Network/strong (spana class=wiki_link_ext href=http://thelegalbroadcastnetwork.squarespace.com/ rel=nofollowLBN/a/span) spana class=wiki_link_ext href=http://ear.vo.llnwd.net/o2/37659/37659-3303.mp3 rel=nofollowpodcast interview/a/span by Scott Drake with S2KM#39;s Managing Director, Patrick Hindert. S2KM also published a spana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/05/2008-naela-sy-1.html rel=nofollow2008 blog post/a/span analyzing NAELA and NAELA#39;s CELA certification program from a knowledge management and web 2.0 perspective./p pstrongNational Alliance of Medicare Set-Aside Professionals/strong (spana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/10/namsap-2008-ann.html rel=nofollowNAMSAP/a/span) - Founded in 2005, NAMSAP is a non-profit organization devoted to improving Medicare set-aside arrangements (strongMSAs/strong) and to facilitating compliance with Medicare conditional payment recovery./p ul listrongBackground/strong - MSAs are administrative and funding mechanisms utilized in certain categories of settlements to protect Medicare#39;s interests as quot;emsecondary payer/emquot; under the Medicare Secondary Payer (strongMSP/strong) statute. Although the MSP rules were enacted by Congress in 1980, CMS did not begin to enforce the MSP statute until 2001 based upon a series of CMS policy memoranda for workers compensation cases, several of which address structured settlement issues./li listrongMMSEA/strong - On December 29, 2007, President George W. Bush signed into law the quot;emMedicare, Medicaid and SCHIP Extension Act of 2007/emquot; (strongMMSEA/strong). Beginning July 1, 2009, MMSEA requires liability insurers (including self-insurers, no-fault insurers and workers compensation insurers) to determine Medicare status for all claimants and report all claims involving a Medicare beneficiary to CMS when those claims are resolved. If the reporting for any claimant is not done in a timely manner, MMSEA authorizes CMS to enforce a civil penalty against liability insurers of $1000 per day per claimant. These information requirements and penalty provisions provide the basis for expanded enforcement by CMS of the MSP statute./li listrongMARC/strong - One of the featured presenters at the NAMSAP 2008 Annual meeting was strongRoy Franco/strong, Director of Safeway#39;s Risk Management Strategies and Chairman of the Medicare Advocacy Recovery Coalition (strongMARC/strong).ul liIn discussing the MMSEA requirements for liability cases, Franco said emquot;the issue is not just about reportingquot;/em and predicted a emquot;claim freezequot;/em as liability insurers and self-insureds wait for resolution and approval before they pay claims./li liFranco characterized the MMSEA MSP rules as an attack on traditional best practices for liability claim management. He predicted legal challenges and criticized MMSEA rules./li liFranco outlined MARC#39;s priorities for MMSEA which include changing the law or, alternatively, obtaining an injunction to stop its July 1, 2009 implementation./li /ul /li listrongS2KM reporting/strong - S2KM published seven blog posts in 2008 highlighting recent spana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/09/msa-update---3c.html rel=nofollowMSA/a/span and spana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/01/medicare-medica.html rel=nofollowMMSEA/a/span developments that impact structured settlements including several developments that have occured during 2008./li listrongS2P2J analysis/strong - spana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/11/s2p2j-release-44.html rel=nofollowS2P2J Release 44/a/span features an extensive update of MSA rules for structured settlements as well as a summary of MMSEA./li /ul pstrongNational Association of Settlement Purchasers/strong (spana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/10/nasp-2008-annual-meeting---3.html rel=nofollowNASP/a/span) - At the NASP 2008 Annual Meeting, Patrick Hindert, S2KM#39;s blog author, moderated a panel discussion titled quot;emHow to Improve and Grow the Structured Settlement Market/emquot;. Participants included: strongJack Meligan,/strong strongMichael Upchurch/strong and strongMatthew Bracy/strong. As settlement planners, both Meligan and Upchurch described their view of the secondary market as a quot;emmixed-bag/emquot; of bad and good. The quot;embad/emquot; part of factoring results from non-professional (quot;emcash now/emquot;) advertisements promoted by many factoring companies. Not only do plaintiff attorneys dislike quot;cash nowquot; advertisements, according to Meligan and Upchurch, they are also less likely to recommend structured settlements if they believe their clients will eventually sell their payment rights. The potential liquidity provided by settlement transfers, however, improves the structured settlement annuity product. Lives change. Unexpected events occur. Even the best personal injury settlement plans need to be reviewed post-settlement and sometimes adjusted. Settlement transfers, which must be reviewed and approved by state judges, are appropriate in some cases. Bracy emphasized the need for well-educated plaintiffs and plaintiff attorneys - as well as judges. He noted that many primary market participants have ignored the settlement transfer business. Bracy acknowledged that good and bad business practices exist in the secondary market as well as the primary market. According to Bracy, the potential secondary structured settlement represents between 5% and 7% of the total primary market. Most structured settlement cases, according to Bracy, neither require nor qualify for a settlement transfer./p pstrongNational Settlement Consultants/strong (spana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/05/national-settle.html rel=nofollowNSC/a/span) - Patrick Hindert, S2KM#39;s Managing Director and blog author, was privileged to speak at the NSC 2008 Annual Meeting and also to attend NSC presentations and social functions. In addition to strongMichael and William Goodman/strong, NSC founders and principals, the NSC presenters included representatives from ten (10) structured settlement annuity providers as well as several national settlement planning experts. In retrospect, the quot;emnot-for-publication/emquot; May 2008 NSC presentations by some of the annuity providers now seem especially interesting and important. Among other topics, these presentations addressed investment exposure to real estate mortgages plus one annuity provider#39;s study of settlement transfers by its own structured settlement recipients. strongRandy Snow/strong#39;s NSC keynote presentation about change and growth was humorous and thought-provoking. Randy subsequently participated in a series of spana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/08/interview-wit-2.html rel=nofollowS2KM blog interviews/a/span about change and growth in the structured settlement industry. Hindert provided a structured settlement Medicaid update as part of the NSC educational program./p pstrongNational Structured Settlement Trade Association/strong (NSSTA) - Founded in 1985, NSSTA is the oldest and largest structured settlement professional trade association. NSSTA#39;s members are primarily structured settlement consultants and annuity providers. In addition to providing education and certification, NSSTA historically has served as the legislative and lobbying voice of the primary structured settlement market. NSSTA#39;s committees, especially NSSTA#39;s legal committee, are among the most valuable sources of information about the structured settlement industry./p ul lispana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/01/nssta-2008-wint.html rel=nofollowWinter Meeting/a/span - Prominent educational themes and presentations at the NSSTA 2008 Winter Meeting included: trial attorneys; disabled persons and disability associations; government benefits; structured settlement legal documentation; legislative and regulatory developments; Internet marketing; and professionalism./li lispana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/04/2008-nssta-an-1.html rel=nofollowAnnual Meeting/a/span - strongChris Diamantis/strong, NSSTA#39;s 2008 President, introduced strongJoseph Ricci/strong as NSSTA#39;s new Executive Director, and identified NSSTA#39;s emstrategic priorities/em for 2008: factoring; advocacy and marketing; professionalism; and governance and communication. strongJ.P. Steele/strong announced the results of a Structured Settlement Survey Report sponsored by AIG which S2KM summarized in a spana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/11/structured-settlement-surveys.html rel=nofollowNovember 23, 2008 blog post/a/span. strongEric Vaughn/strong, NSSTA#39;s lobbyist, provided a quot;emWashington Report/emquot; analyzing the then-upcoming federal election from a structured settlement perspective. Legal committee co-chairman, strongMichael Miller/strong, summarized results from 100 factoring cases in which his law firm, Drinker Biddle, had participated since January 2008. strongCraig Ulman/strong, NSSTA#39;s General Legal Counsel, provided a State Guarantee Funds primer. strongBradley Frigon/strong spoke about special needs trusts. Among other topics, two actuarial presentations discussed structured settlement pricing./li lispana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/11/nssta-2008-fall-meeting---3.html rel=nofollowFall Meeting/a/span - Although S2KM participated in four committee meetings at NSSTA#39;s 2008 Fall Meeting, S2KM did not attend NSSTA#39;s educational program because of a scheduling conflict. S2KM#39;s blog coverage of this meeting therefore was limited to editorial commentary./li /ul pstrongSociety of Settlement Planners/strong (spana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/03/ssp-2008-annual.html rel=nofollowSSP/a/span) - Founded in 2001, SSP is a national nonprofit educational and public policy association of professional structured settlement producers and others who assist injured claimants in the settlement process. At its 2008 Annual meeting, the SSP adopted its quot;emStandards of Professional Conduct for Settlement Planners/emquot;, a multi-year SSP project initiated and managed by SSP Director and attorney strongRichard Risk/strong. strongCarl A. Pierce/strong, distinguished professor of law at the University of Tennessee, assisted SSP with this ethics project. Pierce served as a reporter for the latest revision of the American Bar Association#39;s Model Rules of Professional Conduct. strongFrank Johns/strong, a leading special needs attorney and settlement planning ethicist, also advised SSP on its Standards of Professional Conduct. Johns#39; 2008 SSP presentation introduced a proposed Request for Proposal (RFP) for settlement planners. Risk organized and moderated SSP#39;s tax panel that featured strongJody Brewster/strong, strongGlenn Mackies/strong and strongMichael Montemurro/strong. SSP devoted three presentations to government benefits, the highlight being strongDavid Lillesand/strong, a national leader among social security and special needs trust attorneys. Based upon his discussions with the Social Security Administration (SSA), Lillesand stated that Nancy Veillon#39;s January 31, 2006 letters to attorneys Roger Bernstein and Jay Sangerman representing NSSTA are quot;eminoperative/emquot; - a statement Lillesand repeated during his presentation with SSA executive attorney Ken Brown at the ASNP 2008 Annual Meeting. SSP#39;s panel discussion about the secondary markets included NASP Executive strongEarl Nesbitt/strong, strongStephen Harris/strong and strongRhonda Bentzen/strong. Other SSP educational presentations included a legislation and litigation update, settlement planning case studies, and advice about Internet marketing./p pstrongStetson Special Needs Trust X/strong (spana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/10/special-needs-t.html rel=nofollowSSNTX/a/span) - Throughout its 10 year history, the Stetson Conference has been recognized as the leading special needs trust (SNT) knowledge forum in the United States. Most of the speakers are members of either the Academy of Special Needs Planners (strongASNP/strong) or the Special Needs Alliance (strongSNA/strong). For structured settlement professionals, the 2008 Stetson program titled quot;emThe Basics of Special Needs Trusts/emquot; offered analyses of several important settlement planning topics and included two presentations specifically focusing on structured settlements: /p ul liTexas Attorney strongPi-Yi Mayo/strong spoke about the January 31, 2006 Social Security Administration (SSA) letters to attorneys Roger Bernstein and Jay Sangerman as well as the application of the Deficit Reduction Act of 2005 (DRA) to structured settlements used to fund special needs trusts; and/li listrongLeo Govoni/strong provided quot;emAn Economic Analysis of Structured Settlements/emquot;./li /ul pstrongStructured Settlement Knowledge Leadership Conference/strong (spana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/06/structured-sett.html rel=nofollowSSKLC/a/span) - Focusing on the emquot;needs and best interests of consumersquot;/em, the first Structured Settlement Thought Leadership Conference, sponsored by J.G. Wentworth, was designed to bring together knowledge leaders who are emquot;redefining structured settlement roles and processesquot;/em. The Leadership Conference objective was to provide an educational platform and open forum dedicated to growing and improving the structured settlement market. In addition to four panel discussions and two individual presentations, the Leadership Conference featured a brainstorming session to improve the structured settlement process for plaintiffs based upon the subjects discussed in prior sessions. The panel discussions addressed the strongeconomic life cycle/strong of a personal injury claim identified by strongAdam Scales/strong in his 2002 Wisconsin Law Review article titled emquot;Against Settlement Factoring? The Market in Tort Claims has Arrivedquot;/em. One result of the Leadership Conference was the subsequent 2008 spana class=wiki_link_ext href=http://s2kmblog.typepad.com/rethinking_structured_set/2008/12/jg-wentworth-survey-5.html rel=nofollowstructured settlement survey/a/span conducted by J.G. Wentworth. /p

Full post as published by Beyond Structured Settlements on December 22, 2008 (boomark / email).