Go One Step Further: The 529 ABLE For Recovering Opioid Abusers…?

Posted December 13, 2018

ground group growth hands
Photo by Pixabay on Pexels.com

Can the 529 ABLE account be expanded to include Opioid Use Disorder as a qualified disability?  It is worth considering.

Prior to June 2018, the Whatcom County Sherriff’s office had a policy of denying individuals suffering from opioid use disorder (OUD) medications that treat opioid addiction.  Inmates were required to go “cold turkey” during their time in custody.  An exception was made for pregnant inmates.  The Americans With Disabilities Act forbids discrimination against disabled individuals; a public entity cannot deny the benefits of the services programs, or activities of the public entity based upon a disability for which reasonable accommodations for access to the benefits can be made.  Individuals suffering from OUD are considered disabled.  The ACLU of Washington’s position in the class action civil rights lawsuit filed against Whatcom County and the Whatcom County Sherriff was that MAT or “medically assisted treatment” medications (which include buprenorphine and morphine) are “clinically appropriate medications” and are on par with other medications for people suffering from other medical ailments (e.g., heart or diabetes medicine).  OUD is a “chronic” condition, effects brain chemistry and can require the use of MAT on a regular basis…even for the remaining years of the addict’s life.  MAT helps addicts achieve better outcomes through their recovery journey, which may include reduction in unnecessary physical suffering, chance of relapse, and overdose.  To deny incarcerated addicts suffering from OUD access to MAT is to single out a group of people deemed disabled by the ADA, which is discrimination and prohibited.   The U. S. District Court in Seattle ruled that the Whatcom County Jail was, indeed, in violation of the ADA.  OUD is a protected disability under ADA.

What is a qualified disabled person according to the Americans with Disabilities Act, Title II?

According to Title II, Section 201 of ADA, a “qualified individual with a disability” is a person with a disability who, “with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”  Explicitly, ADA addresses public transportation, vehicles, construction and access to facilities.  However, there is the idea that the services provided by the public entity (state or local government, department, agency, district, instrumentality, or commuter service) are to be available for all qualified individuals and the disability itself is to have no bearing on their qualifications to receive the service offered.

The plaintiffs in the ACLU of Washington case were entitled to receive the same medical services that other inmates received in Whatcom County Jail because OUD was a medical condition that required medication.  Previous trouble with the law or the fact that they were not pregnant did not absolve the jail from treating the inmates fairly by offering medications to treat a chronic, debilitating and deadly condition.

What is a qualified disabled person according to the Social Security Administration?

The federal government has a very strict definition of disability.  A recipient of benefits must not be able to work; the condition must be severe, significantly hindering ability to do basic work activities such as lifting, standing, walking and remembering.  Blindness, in severe, non-correctable cases is a condition that warrants SSA benefits under the strict federal definition of disability.  In addition, the condition must be expected to last more than one year or result in death.  There is a five-step process when determining whether or not a person meets the criteria of qualified disabled person that addresses the following:

  1. Employment status and earnings
  2. Severity of condition
  3. Is the condition included on the listing of impairments? (“medically equal” conditions, similar in severity to listed impairments, are also considered)
  4. Ability to do work within or related to current/previous profession
  5. Ability to do ANY gainful work

What is a qualified disabled person according to the requirements of a 529 ABLE account?

On December 19, 2014, President Obama signed The Stephen Beck, Jr. Achieving a Better Life Act of 2014 into legislation to facilitate a way for blind and disabled individuals to save money in tax advantaged accounts for the purpose of ensuring a better quality of life.  Qualified disabled persons are individuals with a physical or mental disability (not necessarily limited to sight or hearing) that functionally limits their ability to be employed or substantially limits one or more life activities (walking, speaking, breathing, learning, or working.)  In order to be qualified, the individual must meet the requirements set forth by title II or XVI of the Social Security Act.

According to the ABLE National Resource Center in Washington DC, qualified expenses are “any expenses related to the designated beneficiary’s blindness or disability that assist him/her in increasing and/or maintaining their health, independence and/or quality of life. These may include expenses related to education, housing, transportation, employment training and support, assistive technology, personal support services, health care expenses, financial management and administrative services and other disability related expenses that the beneficiary might incur as a result of having a disability.”  Some of the noteworthy characteristics of ABLE accounts are:

  1. Can be set up for qualified individuals that became disabled prior to age 26. It is possible to open the account at any age.  The ABLE Age Adjustment Act was introduced in the Senate on April 4, 2017, which aims to increase the age threshold to 46.
  2. Only one account may be set up per qualified disabled individual (beneficiary). The beneficiary is the owner; however, it is possible to designate a parent, guardian or power of attorney to have signing authority on the account for the benefit of the beneficiary.
  3. If a beneficiary of a 529 Education Savings Account, which can be established specifically for qualified education related expenses, becomes disabled, then the education account funds can be “rolled over” to a 529 ABLE account, however there are some limitations on amounts.
  4. For 2018, the annual contribution limit is $15,000. Multiple individuals can contribute to the account up to the annual limit.  The beneficiary can contribute a portion of their own compensation to the ABLE account, subject to some limitations.
  5. Money used from the account for “qualified expenses” will not be included in the beneficiary’s gross income. This means that others can contribute to the account, but the owner gets the benefit of using the funds for their health and well-being without incurring an extra tax burden.  There are direct deposit and debit card features.
  6. The funds deposited in the 529 ABLE account are not subject to the $2000 maximum personal asset limit required to qualify for public benefits like Medicaid and Supplemental Security Income. However, if the account balance grows to over $100,000, SSI benefits will be suspended.
  7. Funds within the 529 ABLE grow tax free…AND…as long as the distributions are for qualified expenses, there are no taxes due on the growth when the funds are withdrawn!
  8. Set up of a 529 ABLE account is relatively simple, without the expense, complexity or IRS filing requirements of trust accounts that are used to meet the same general objectives of providing funds for individuals with special medical/health and welfare needs.
  9. The ABLE act authorized states to establish the accounts, however, establishment was not required. Each state has unique characteristics that pertain to additional tax savings and the treatment or reimbursement of state benefits upon the death of the beneficiary.
  10. According to the ABLE National Resource Center, as of August 2018, 29 states established ABLE programs with a cumulative of $100,000,000, in 20,000 accounts, with an average of $5000 of savings per account.

Opioid Overdose DeathsAs calamitous as the graph above appears, in December 2017 the National Institute on Drug Abuse published an overview of the results of the Monitoring the Future survey, a large-scale federal survey described as a continuing study of American youth.  Two of the several highlights of the survey were:  1) while adult opioid use rates remain relatively high, the data shows that teen misuse is less frequent than ten years prior;  and 2) teens reported that narcotics other than heroine were not as easy to acquire as they used to be in the past (In 2017, 35.8% of 12th graders felt they were easy to obtain, versus 54% in 2010).[i]   View commentary by Dr. Nora Volkow, Director of the National Institute of Drug Abuse here.

However, the graph displays number of opioid deaths, not number of people “living in hell” per se.  Those that are still struggling through the addiction contend with the economic and social barriers to recovery on a daily basis.  Consider the Bureau of Labor Statistics Job Outlook for substance abuse, behavioral disorder and mental health counselors.

Behavior Health Career InfoEmployment of substance abuse, behavioral disorder, and mental health counselors is projected to grow 23 percent from 2016 to 2026, much faster than the average for all occupations. Employment growth is expected as people continue to seek addiction and mental health counseling services.

Demand for substance abuse, behavioral disorder, and mental health counselors is also expected to increase as states seek treatment and counseling services for drug offenders rather than jail time. In recent years, the criminal justice system has recognized that drug and other substance abuse addicts are less likely to offend again if they get treatment for their addiction. As a result, sentences often require drug offenders to attend treatment and counseling programs. In addition, some research suggests that these programs are more cost-effective than incarceration and states may use them as a method to reduce recidivism rates. In addition, there will be a continued need for counselors to work with military veterans to provide them the appropriate mental health or substance abuse counseling care. [ii]

A premise of “Thief” is that the opioid epidemic is systemic.  “Thief – Overcoming Economic and Social Barriers to Recovery” dealt with some of the social, political, legal and financial planning issues that planners and clients must contend with during human capital recovery.   On the road to recovery, opioid use disorder patients receive financial, social and emotional support in the form of pooled funds for groceries, transportation, educational and vocational experience expenses, dual diagnosis medication payments, rent payments, behavioral health therapy, and several iterations of treatment.  The SSA List of Impairments identifies conditions that are severe enough to prevent gainful activity or to cause severe functional limitations that are permanent or will result in death—a tall hurdle that currently applies to 529 ABLE accounts.  Recovery from OUD is very possible with support systems that provide long-term proactive management of the recovery with appropriate medication and supportive social and professional networks willing to create an environment for change.  There are no easy, standardized solutions, but society, as a collective, can provide the tools to help families and communities help themselves by:  1) providing the ability to pool assets from several people in a tax advantaged manner ; and 2) accountability for expenditures.  The 529 ABLE could be expanded to be such a tool in the midst of the opioid epidemic by not only increasing the age qualification limit, but also including OUD sufferers with documented dual diagnosis treatment as qualified disabled persons.

The plaintiffs in the ACLU of Washington case against Whatcom County and the Sherriff’s Department were teenagers when they became addicted to opiates and suffered from OUD for at least ten years prior to the incarceration that prompted the lawsuit.  BLS statistics indicate that the need for behavioral health professionals will increase dramatically between now and 2026.  Behavioral health professionals and the criminal justice system are adjusting their approach to counseling, diagnosis and incarceration.

The 529 ABLE account is not meant to transfer and preserve wealth.  Families on the economic margins engage in a form of financial planning by pooling extremely limited resources for the benefit of a beneficiary.  Why not expand the reach of an account type that is meant to (according to Section 101 of the ABLE Act of 2014):

1)     Encourage and assist individuals and families in saving private funds for the purpose of supporting individuals with disabilities to maintain health, independence, and quality of life; and

2)     Provide secure funding for disability-related expenses on behalf of designated beneficiaries with disabilities that will supplement, but not supplant, benefits provided through private insurance, the Medicaid program under title XIX of the Social Security Act, the supplemental security income program under title XVI of such Act, the beneficiary’s employment, and other sources.

…for the most vulnerable, for the sake of OUD beneficiaries and contributors?

It is worth considering.

Terry

[i] Kaiser Family Foundation, Opioid Overdose Deaths By Age Group, State Health Facts Tool, https://www.kff.org/other/state-indicator/opioid-overdose-deaths-by-age-group (visited December 12, 2018)

[ii] Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Substance Abuse, Behavioral Disorder, and Mental Health Counselors,
on the Internet at https://www.bls.gov/ooh/community-and-social-service/substance-abuse-behavioral-disorder-and-mental-health-counselors.htm (visited November 22, 2018)

Thief – Overcoming Social and Economic Barriers to Human Capital Recovery

Posted November 29, 2018

“My life was a raging dumpster fire!” – Anonymous, after two weeks at a residential drug rehabilitation treatment center.

So, how does the practitioner or client engage in financial planning while the client is driven to desperately and surreptitiously feed their addiction or fearfully concede to a dependence on opiates?  When abused, opiates morph into a swarm of locusts feeding on human capital. For an addict, or those individuals supporting the recovery efforts of an addict, human capital recovery starts by the client:

1)     recognizing and acknowledging the reality of the client’s situation;

2)     educating himself on options available for recovery;

3)     determining a personalized course for recovery with the help of trusted personal and professional support systems;

4)     Investing in himself by implementing a plan for recovery; and

5)     pro-actively taking care of himself on an ongoing basis by attending therapy, living a healthy lifestyle, and rebuilding the parts of his life that may have been neglected during the darkest hours of dependence or addiction.

While developing a five-step plan may seem intuitive to some, there are challenges that must be acknowledged directly.  Some of the challenges have to do with access to and affordability of treatment facilities, as well as the pharmaceutical industry’s and prescribing medical practitioners’ continued use of oxycodone.  It is also important for patients to advocate for themselves—for their very own best interests from a position of power; knowledge is power.

Recent news, developments and perspectives…

The Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act, also known as the SUPPORT for Patients and Communities Act was signed into law on October 24, 2018.  https://www.youtube.com/watch?v=2geQ0d3WsMY#action=share.  This legislation is holistic in nature.  It specifically addresses and provides guidance on opioid crisis issues such as Medicaid and Medicare provisions, detection and monitoring systems for synthetic opioids, behavioral health, opioid safety education, promotion of research to respond to the threat of the crisis itself, illicit drug importation, safe disposal of unused medication, treatment for veterans, support for grandparents caring for grandchildren, prescribing guidelines, support for mothers and care for infants suffering from neonatal abstinence syndrome and much, much more.  See the text of the SUPPORT for Patients and Communities Act at the following link:  https://www.congress.gov/bill/115th-congress/house-bill/6/text.  The above list of areas covered by this Act is a mere fraction of the sweeping legislation.

The Drug Enforcement Agency (DEA) appears to be on the mission and engaged in the battle against illicit opioid distribution and prescribing practices.  On November 15, 2018, Serio Juana Devoe was sentenced to 10 years in prison and eight years of supervision for attempting to distribute fentanyl and methamphetamines.  The Anchorage Police Department and the Drug Enforcement Agency (DEA) cooperated on the case which was prosecuted as a result of the United States Department of Justice Project Safe Neighborhoods (PSN) program.  PSN is a federally funded initiative that promotes nation-wide multi-agency efforts to reduce gun violence.[1],[2]  On October 31, 2018, the acting administrator of the DEA Diversion Control Division, denied the DEA Certificate of Registration for Edward A. Ridgill, MD, effective immediately.[3]  In August 2016, Dr. Ridgill was one of two doctors in Lynwood, CA that was arrested on federal drug charges for issuing prescriptions without a medical purpose.  He issued more that 21,000 prescriptions for hydrocodone (Vicodin or Norco), codeine (for example, promethazine with codeine cough syrup, street name purple drank), alprazolam (Xanax), and carisoprodol (muscle relaxer).   According to the investigation affidavits, there was evidence that the two doctors were large-scale suppliers for gang members.[4]  In December 2017, Dr. Ridgill was convicted of 26 counts of unlawful distribution of controlled substances.[5]

The US Department of Health and Human Services maintains the National Practitioners Data Bank (NPDB).  The NPDB was established by Congress in 1986 and serves as a web-based repository of reports and data that contain information on medical malpractice payments and adverse actions pertaining to health care professionals (practitioners, providers and suppliers).  An analysis of the most recent data reveals that between 1990 and 2017, there were a total of 3848 DEA Adverse Action Reports and 635,125 state licensure adverse reports[6].    Below is a chart of the most relevant categories for the purposes of this report.

DEA

Adverse Action Reports

State Licensure Adverse Action Reports

Physicians, MD

2699

4408

Pharmacist

0

1270

Dentists

341

1058

Physicians, DO

318

511

Advanced Practice Nurses

240

226

Physician Assistants

134

329

 

The below is a graphic representation of the number of reports issued each year for the specific practitioners listed in the table above.  Clearly, the number of reports issued by the DEA and state licensing organizations on an annual basis significantly increased after 2008.

Number of DEA Adverse Action Reports; 1990 – 2017[7]

Number of state licensure Adverse Action Reports; 1990-2017[8]

In May 1986 the medical journal Pain published a research report by Drs. Russell K. Portenoy and Kathleen M. Foley entitled “Chronic Use of Opioid Analgesics in Non-malignant Pain:  Report of 38 cases.”  The doctors re-examined up to 7 years of data collected on 38 pain patients that were undergoing some form of opioid analgesic pain management for non-malignant conditions.  After retroactively examining factors such as dosage, pain relief, toxicity, time in pain management therapy, and personality factors of 38 patients, Portenoy and Foley concluded “that opioid maintenance therapy can be a safe, salutary and more humane alternative to the options of surgery or no treatment in those patients with intractable non-malignant pain and no history of drug abuse.”[9]  This study was used as the touchstone for the mass marketing of opioids as a go-to narcotic for pain relief…moderate to severe.  As early as 1998, researches at the University of British Columbia in Vancouver published research that directly contradicted Purdue and FDA claims that OxyContin was safe to prescribe, in that there was a low probability that patients would become dependent on or addicted to the narcotic in a “time release” formulation.  Purdue Pharma was aware of the research study published in the Journal of the Canadian Medical Association.  The study revealed that on the streets of Vancouver, abusers learned to peel away the time release coating and crush the pills; they were called “peelers”, and one 30 milligram pill had a street value of $40.  The very same pill sold for $1 at the pharmacy.[10]  It is against this backdrop that some pharmaceutical companies, distributors and medical professionals claim that they have no responsibility for the current opioid contagion.   Consider:

  • Purdue Pharma has paid several hundreds of millions of dollars in government penalties and civil litigation over the last decade or so, however they are currently facing more than a thousand lawsuits brought by cities, states, and Native American tribes. In August 2018 the company hired restructuring lawyers in response to mounting law suits that claim several pharmaceutical companies mislead the public about the addictive nature of their opioid painkillers.  The plaintiffs hope to recoup some of the costs of battling the epidemic.   According to an October 2018 Wall Street Journal article, Purdue Pharma along with other drug manufacturers claim they did not cause the opioid crisis and want plaintiffs to show how the companies were to blame by presenting specific numbers of prescriptions and identifying specific residents (both data points in the hundreds) that were harmed by the opioid prescriptions.
  • In a 2012 Wall Street Journal interview, Dr. Portenoy stated the following:

Did I teach about pain management, specifically about opioid therapy, in a way that reflects misinformation? Well, against the standards of 2012, I guess I did…We didn’t know then what we know now.

My patients are on very high doses, and I have patients who are executives in companies, hedge fund managers, hospital executives…I think that some of the literature that has emerged is not balanced…

What we are now dealing with in the United States is a movement of the pendulum back toward a level of concern and fear that is driving some policy decisions, that in my opinion, are very likely to harm the public health by reducing access to these essential drugs.[11], [12]

View the video-taped interview here:  A Pain-Drug Champion Has Second Thoughts

  • On November 2, 2018 the FDA approved Dsuvia (sufentanil), a synthetic opioid analgesic to be used in “acute pain settings”, such as emergency rooms and on the battlefields. It must be administered by a health professional in a “certified medically supervised healthcare setting”, not to be taken for more than 72 hours.[13]  AcelRx Pharmaceuticals has approval to sell this opioid analgesic that is 10 times stronger than fentanyl and 500 to 1000 times stronger than morphine.  The projected annual sales are $1.1 billion. [14]

Dumpster Fire

“My life was a raging dumpster fire!” – Anonymous, after two weeks at a residential drug rehabilitation treatment center

 

 

The financial and human capital costs for treatment

The cost to treat substance abuse disorders is substantially less than the cost associated with battling the societal ills the abuse produces.  Criminal justice, Neonatal Abstinence Syndrome, increased growth- rates and incidences of infectious diseases, injuries sustained while intoxicated and lost productivity are a few of the areas that increase the costs associated with the opioid epidemic.  According to an article published in the Medical Care section of the American Public Health Association Journal, in 2013 only 3.6% of the $78 billion dollars spent on opioid use disorders in the United States was spent on treatment.[15]  United States Department of Defense estimates for substance abuse treatment are as follows:

  • $6552 per year for methadone treatment, including medication and integrated psychosocial and medical support services (assumes daily visits)
  • $5980 per year for opioid treatment facilities that provide buprenorphine (includes medication and two meetings per week, stable patient)
  • $14,112 per year for opioid treatment facilities that administer naltrexone and related services.

To place these expenditures in context, average annual expenditures for diabetes mellitus is $3560, and $5624 for kidney disease patients.[16]  However, even more context is needed.

Residential substance abuse treatment programs that offer counseling, group therapy, psychological evaluations, medication, education about the addiction (remember, knowledge is power), psychosocial or behavioral interventions, family programs, relapse preventions programs, and sober housing referrals can be cost prohibitive for many of the would-be patients.  The cost for these programs can be $15,000 to $30,000[17] per year…or higher.  In accordance with the Affordable Care Act, mental health and substance abuse services are considered essential health benefits.  It is important to review individual plans to determine the specifics of individual coverage, however pre-existing conditions are covered and there can be no annual or lifetime dollar limits on essential health benefits.[18]  Some insurance companies will require patients to attend and fail an out-patient program before approving a holistic residential program.  Therefore, even after the addict triumphs over the barriers of facing the reality that they are suffering from an opioid use disorder and facing the fear of giving up the pills and potentially suffering from chronic pain that has been dulled by the opioid use, there can be confusion about costs and which treatment options will be successful and affordable.  Because the addiction is chronic, treatment and self-care in the form of individual and group therapy, medications (especially in the case of dual diagnosis treatment), healthy living, and measured, deliberate re-entry into the work place are critical and require structured processes.  All of this adds up to ongoing costs that do not even address the financial burdens amassed by the nuclear and extended family in the forms of child support, divorces, lost capital assets and destroyed careers.  The primary concern is to get better physically, emotionally, and psychologically…which means that finding work is not a primary concern, even in the face of the mounting financial burdens.  For a period of time, the recovering addict will need to acknowledge and deliberately, where practical,  tackle the realities of the dumpster fire that consumed jobs, family relationships, friendships, health and assets.  Everyone touched by the addiction is in recovery.

Creating Peace Of Mind Waypoints and course corrections…

Consider integrating the following life planning waypoints into your overall financial planning process to help mitigate the risks associated with opioid dependency or addiction.

  1. Get CPR/Overdose training. Vice Admiral Jerome Adams, the U.S. surgeon general issued an advisory; In an April 2018 interview with NPR host Rachel Martin, he urged Americans to carry naloxone (commercial name Narcan), a medication to be administered in case of an opioid overdose.   Not only do first responders carry the medication, households are encouraged to have the medication as part of home first aid kits.  When asked why “ordinary Americans” should be prepared to use Narcan, he responded that “Over half of the overdoses that are occurring are occurring in homes, and so we want everyone to be armed to respond. We should think of it like an EpiPen or like doing CPR on someone.”[19]  The Veterans Administration includes naloxone in defibrillator cabinets.  A simple internet search reveals where you can purchase the medication without a prescription.  Check your local pharmacy for an over-the-counter dose of this opioid overdose antidote.  Emergency care is still necessary after an overdose, however if administered after oxycodone is injected or snorted, naloxone will counteract the effects of the opioid.  As mentioned in previous posts, there are “good Samaritan” laws to protect individuals that administer naloxone and encourage vital medical attention after the medication is administered.  Some states require school nurses to carry the antidote and many have used it; our high schools are the front line.  Sadly, this is the new norm…be prepared.
  2. Proactively seek accountability when oxycodone is prescribed. Medical practitioners advise that it is important to manage pain after procedures that result in significant discomfort.  In layman’s terms, patients can better tackle the healing process if they can follow post procedure directions for recovery without the distraction of pain that may make them hesitant to follow discharge directions.  The law requires that patients complete specific documents acknowledging that they will receive oxycodone during recovery and that they understand how it will be prescribed, when it will be prescribed, under what conditions refills will be given, and what will happen if patients violate the contract pertaining to the use of the oxycodone narcotic.  Show and discuss copies of the document you sign with at least one or two trusted friends or family members that will help during the recovery process.   Ask about alternative pain medications.  Federal guidelines, as of 2016, dictate that opioids be prescribed for no more than three to seven days.
  3. Know how to dispose of unused medication and do so immediately. Recently, Hollywood actress Jamie Lee Curtis revealed her struggle with opioid addiction; she became addicted after receiving a prescription for painkillers after plastic surgery.  She admits to stealing pills from friends and family when she no longer had her own prescriptions re-filled.  The U.S Food and Drug Administration website[20], [21] lists several options for disposal of used medicines, to include:
    • National Prescription Drug Take-Back events – temporary medicine collection events; provide education on drug abuse. The Diversion Control Division section of the DEA website has a search tool; enter your zip code to find dates and times of local take back events.
    • DEA registered collectors – safely and securely collect and dispose of pharmaceuticals containing controlled substances and other medicines. Locations can be retail pharmacies, hospital or clinic pharmacies, and law enforcement facilities or collection receptacles/drop boxes.
    • Guidance on how to dispose of prescription medications that must be flushed immediately or disposed of in household trash.
  4. Get estate planning documents in order. Estate planning is not only for the wealthy.  While estate planning primarily addresses ownership and transfer of assets, it is also about protecting family and determining a process for using assets as efficiently as possible before and after the estate owner’s death.   Seek advice from an estate planning professional to address some of the potential human capital and financial issues that may arise as a result of opioid addiction, and the tools available to manage healthcare and assets.  The documents below allow an individual to designate trusted “agents” to manage assets and medical decisions to varying degrees.  These documents “starting points”, relevant in sickness and in health and part of a holistic planning processes.  Once again, my premise is not that your financial trusted advisor or estate planning professional is a behavioral health professional; do not expect behavioral health advice.
    • Power of attorney (POA) – Grants permission for someone else (an attorney in fact) to act on behalf of the principal (the person creating the POA). The attorney in fact can make legally binding decisions.  The POA can include limitations on scope and length of time.
    • Durable Power of Attorney (DPOA) – Similar to a POA, however, if the principal becomes incapacitated, the POA is no longer binding; DPOA remains in effect after the principal is incapacitated. In the event of incapacity, a trusted individual can be designated to manage assets and make financial decisions.  If it is a “springing” DPOA it will become effective at the time of incapacitation.  A durable power of attorney for healthcare (DPOAHC) is always “springing” and the scope is limited to medical decisions, not property decisions.  A DPOAHC is not only appropriate for situations in which the principal might be terminally ill, but also if the principle is unable to give consent for medical procedures or decisions;
  5. Execute a plan for recovery.  In general, any planning process includes:  gathering information, analyzing the information, developing a process to reach clearly articulated goals, implementing the process with a sense of purpose, and remaining accountable by periodically measuring the rate and amount of progress toward the stated goals.  Then start over.  With recovery from opioid addiction, research shows that, in general, this process never ends.  In his book Overcoming Opioid Addiction, author, Dr. Adam Bisaga provides a list of ways to earn “recovery capital” or a “build up of positives in life.”  As a review, a suggested format for a way forward in the human capital recovery process for an addict, or those individuals supporting the recovery efforts of an addict are to:
    1. Recognize and acknowledge the reality of the opioid abuser’s situation;
    2. Seek education on options available for recovery;
    3. Determine a personalized course for recovery with the help of trusted personal and professional support systems;
    4. Invest in self by implementing a plan for recovery; and
    5. Pro-actively taking care of overall health on an ongoing basis by attending therapy, living a healthy lifestyle, and rebuilding the parts of the opioid abuser’s life that may have been neglected during the darkest hours of dependence or addiction.

As the recovery plan takes shape, consider integrating “recovery capital” in the following ways, which are listed in Dr. Bisaga’s book, which include, but are not limited to:

Participate in treatment and continuing care

Take advantage of therapy even if you have been doing well for a long time

Actively engage with a mutual self-help community

Encourage your partner and family to support your recovery

Support others in their recovery

Choose to live in an environment that is free of drugs

Finish education; find a stable and fulfilling job

Clear all past legal problems…and much more.[22]

Preemptive and proactive life and financial planning are tools that can be used to help overcome social and economic barriers to recovery There are no guarantees but being prepared is a plus.  The process for recovery is unique for each person, however it includes having an awareness of current developments and perspectives, quantifying the cost of medical treatment, and planning for successful redemption of human capital with the help of planning professionals and trusted personal advocates.  The SUPPORT for Patients and Communities Act is comprehensive, law enforcement and licensing agencies are engaged, communities are developing educational programs and partnerships to save lives, and estate planning tools are available to assist in the planning process.   A systemic problem requires comprehensive, innovative solutions.  Not all are listed here.  Everyone touched by the contagion is in recovery–all hands on deck to encourage and support our loved ones as they douse the “dumpster fires.”

–Terry

[1] Herraiz, Domingo S. “Project Safe Neighborhoods: America’s Network Against Gun Violence.” U.S. Department of Justice Office of Justice Programs Bureau of Justice Assistance,  https://www.ncjrs.gov/pdffiles1/bja/205263.pdf, accessed on 11/24/2018.

[2] Underwood, Jodie. “Anchorage Man Sentenced for Fentanyl Trafficking” U.S Drug Enforcement Agency,  https://www.dea.gov/press-releases/2018/11/15/anchorage-man-sentenced-fentanyl-trafficking , accessed on November 12, 2018

[3] US Department of Justice, Diversion Control Division, DEA Decision Order, https://www.deadiversion.usdoj.gov/fed_regs/actions/2018/fr1120_3.htm   [Federal Register Volume 83, Number 224, Tuesday, November 20, 2018.

[4] Department of Justice, US Attorney’s Office Central District Of California, “Two Doctors Face Federal Charges of Illegally Writing Prescriptions for Addictive Narcotics Connected to Gang’s Drug Trafficking.”  https://www.justice.gov/usao-cdca/pr/two-doctors-face-federal-charges-illegally-writing-prescriptions-addictive-narcotics.  Augutst 29, 2016, accessed on 11/24/2018.

[5] https://www.deadiversion.usdoj.gov/fed_regs/actions/2018/fr1120_3.htm

[6] Singh, Harnam. National Practitioner Data Bank. Generated using the Data Analysis Tool at https://www.npdb.hrsa.gov/analysistool.

[7] Singh, Harnam. National Practitioner Data Bank. Generated using the Data Analysis Tool at https://www.npdb.hrsa.gov/analysistool.

[8] Singh, Harnam. National Practitioner Data Bank. Generated using the Data Analysis Tool at https://www.npdb.hrsa.gov/analysistool.

[9] Portenoy, R. K. and K. M. Foley, “Chronic Use of Opioid Analgesics in Non-malignant Pain:  Report of 38 Cases.”  Pain, May 1986, https://www.ncbi.nlm.nih.gov/pubmed/2873550, accessed on 11/24/2018.

[10] Sajan MD, Amin, Trevor Corneil, MD and Stefan Grzybowski, MD, MClS.  “The Street Value of Prescription Drugs,”  from the Department of Family Practice, University of British Columbia, Vancouver, BC , CMAJ 1998, volume 159, pgs. 139-42 .  www.cmaj.ca/content/cmaj/159/2/139.full.pdf, accessed on 11/24/2018.

[11] Catan, Thomas and Evan Perez. “A Pain-Drug Champion has Second Thoughts.” Wall Street Journal, Dec 15 2012, Eastern edition ed. ProQuest. 11/25/2018, accessed on 11/24/2018.

[12] Catan, Thomas and Evan Perez

[13] “Dsuvia Approval History.”  Drugs.com, reviewed by J. Stewart on 11/13/2018.  https://www.drugs.com/history/dsuvia.html, accessed on 11/25/2018.

[14] “FDA Approved new Opioid Drug Called Dsuvia.” https://abcnews.go.com/GMA/Wellness/video/fda-approved-opioid-drug-called-dsuvia-58940799, 11/3/2014, accessed on 11/13/2014.

[15] Florence CS, Zhou C, Luo F, Xu L. “The Economic Burden of Prescription Opioid Overdose, Abuse, and Dependence in the United States.” Med Care. 2016;54(10):901-906. doi:10.1097/MLR.0000000000000625.  Accessed 11/13/2018.

[16] “Medications to Treat Opioid Use Disorder.” National Institute on Drug Abuse, https://www.drugabuse.gov/publications/research-reports/medications-to-treat-opioid-addiction/how-much-does-opioid-treatment-cost, accessed 11/24/2018.

[17] Adam Bisaga, MD, Overcoming Opioid Addiction, (New York:  The Experiment, LLC, 2018) 177.

[18] “Mental Health and Substance Abuse Coverage.”  Healthcare.gov, https://www.healthcare.gov/coverage/mental-health-substance-abuse-coverage/, accessed on 11/27/2018.

[19] “Surgeon General Urges More Americans to Carry Opioid Antidote.”  Soundbite of Sleep Dealers “The Way Home,” NPR Morning Edition, hosted by Rachel Martin, 4/5/2018.  https://www.npr.org/templates/transcript/transcript.php?storyId=599538089, accessed on 11/24/2018.

[20] “Disposal of Unused Medicines:  What You Should Know.”  U. S. Food and Drug Administration.  https://www.fda.gov/Drugs/ResourcesForYou/Consumers/BuyingUsingMedicineSafely/EnsuringSafeUseofMedicine/SafeDisposalofMedicines/ucm186187.htm, accessed on 11/25/2018.

[21]“Prescription Drug Take Back Day.” US Drug Enforcement Agency Diversion Division, https://www.deadiversion.usdoj.gov/drug_disposal/takeback/index.html, accessed on 11/27/2018.

[22] Bisaga 208.

 

Your Cyberspace Assets

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I am always fascinated by a great action packed or science fiction movie that appears to foreshadow the direction our country is going when it comes to technology, global geo-political-military affairs, or the human condition and how we relate to each other.  Whether it’s Soylent Green and the current state of processed foods, The Running Man and today’s prime-time reality shows, or Wall-E and the passengers on board the spaceship Axiom that were fixated on their virtual reality screens, I initially tend to say, “That’s pretty interesting but that will not happen”.  Years later I conclude “yep, we went there!…and in short order, too.”

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This week I am reminded of the relentless targeted advertising John Anderton in the Minority Report endured as he walked through a shopping plaza trying to evade law enforcement.  After discovering that Facebook wanted to have access to user banking information for targeted marketing purposes, I re-watched Minority Report…this time with a keen awareness of the fact that the information that we do choose to share by way of converting that information into digital assets in the cyber world does not belong to us once it is uploaded.  What is duplicated or created when we upload information to cyberspace, these “digital assets”, in many cases, are no-longer exclusively controlled by us, the owners.  In our haste to take advantage of and enjoy the conveniences of easily accessed information, entertainment and productivity in its various forms in cyberspace, we cede our exclusive rights to control what we upload.  We cede that control to the digital platforms that provide the services, storage space or communication ability we wish to use.  When did we voluntarily place limitations on our electronic communications, social media accounts, net working website accounts, frequent flyer miles, cash back points, i-Tune accounts and the like?  Answer:  When we impatiently searched for and selected the “I accept” button for the respective programs, sites or software.  That multi-page document is called a Terms of Service Agreement or TOSA.  It is not just about disclaimers, ethical use of the platform, or how they might share your information for marketing for legally required purposes.  The TOSA is also about what you own and what you don’t own when digital assets are created as a function of your use of the site or service.  Let’s:  1) define some of the important terms; 2) determine where we, as consumers, generally stand when it comes to the TOSA,; and determine what we can do during the financial and estate planning process to protect the digital assets we have simply as a function of using today’s technology.

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The simplest definition of an asset is property that is useful or has value.  Real assets refer to real estate, buildings, inventory precious metals, and other items that have intrinsic value.  Financial assets refer to investments, currency, and items that are used for trade through the financial markets…they ultimately have no intrinsic value but represent a contractual claim and are typically liquid and easily traded.  Digital assets are documents and other audio-visual content that are stored on computers, phones, websites, storage devices like hard drives, email servers, social media accounts…you get the picture.  Cryptocurrencies are digital assets.  Your files stored in “the cloud” are digital assets.  So are web domains.  In their digital form, these items are intangible.  Some have sentimental value, and some have monetary value.  Examples of digital assets that may have monetary value include frequent flyer points, credit card “cash back” balances, Pay Pal balances, and domain names.  In today’s digital world, access to these assets can become limited if not flat out denied based upon the Terms of Service Agreement signed by the original user.  In 2016, an Intel Security survey revealed that the average business employee had 27 passwords.  In 2017 the password manager LastPass placed the estimate at 191.  According to the January 2017 Pew Research Center Internet and Technology report “Americans and Cybersecurity”, 39% of respondents use the same or similar passwords for several different accounts.  These passwords statistics have the potential to add up to a lot of TOSAs and digital assets.  It is worth looking at some of the characteristics of TOSAs.

As mentioned earlier, TOSAs outline your rights, responsibilities and liabilities.  When you skim through the tedious “small print” and hastily press, “I accept” because there are no mendacious motives on your part, you are also accepting the entirety of the default settings.  These default settings cover your rights before and after your death.  In general, social media accounts retain the digital assets posted, and the custodians (or social media companies) can use or dispose of the assets as they see fit.  You may also have to sign a licensing agreement, which gives you, the user, permission to access digital assets in your accounts until death, at which time the right to access terminates.  Typically, music share plans have licensing agreements.  Because TOSAs restrict access to the user during life, and prohibit third-party access after death, it is important to proactively designate provisions for digital assets in estate planning documents.

The Uniform Law Commission (ULC) is an organization comprised of lawyers that work together to draft and propose legislation that clarifies and brings a measure of standardization to state statutory laws.  Although federal laws determine who has access to your accounts, the ULC recognized the need for a fiduciary, (ie, agent, attorney in fact, personal representative, court appointed guardian and trustee) to have appropriate access to and control over digital assets in the same manner as other assets.  In 2015, The ULC created the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), which addressed this need and provided a measure of standardization across states and US territories.  Specifically, it:

“…extends the traditional power of a fiduciary to manage tangible property to include management of a person’s digital assets. The act allows fiduciaries to manage digital property like computer files, web domains, and virtual currency, but restricts a fiduciary’s access to electronic communications such as email, text messages, and social media accounts unless the original user consented in a will, trust, power of attorney, or other record.”1

RUFADAA does not include financial assets:  for example, the act covers access to an investment account online, not the right to manage the assets within the account.  It is also important to recognize that RUFADAA DOES NOT apply to EMPLOYER digital assets.  Therefore, you want to avoid placing personal communications and audio-visual documents on electronic devices that belong to your employer, like a phone, tablet, or office computer.  In effect, the fiduciary can manage, conserve and access digital property just like real and tangible property.  While the RUFADAA does provide a measure of consistency in rules and procedures from state to state, it is imperative that you check with your specific state of residence when drafting your estate planning documents; not all state standards are identical since the state rules must ultimately address and reflect state specific legislative experiences, needs and concerns.

Handling the preservation, liquidation, and potential bequeathing of digital assets are estate planning waypoints.  Here are just a few of the questions you need to ask yourself and discuss with your financial and estate planning professional.

  1. How many personal and business online accounts do I have? How many passwords do I have?  Create an account and password list.  Consider how to best secure that list, whether it is using an online management service or placing the list in a safe.  There are also services available that help locate digital assets.  DO NOT place an itemized list in a will because after your death, your will becomes a matter of public record.
  2. Do I own an online business? What about a personal or business blog?  All of the uploaded content is copyrighted.  Consider whether or not these digital assets need to be integrated into a business succession plan or assigned to heirs.
  3. What do these digital assets mean to me? This question really gets to the heart of why financial planning is life planning and is not a financial exercise exclusively for the wealthy.  Sentimental value is real.  The photos, videos, meme’s…they meant enough to share with friends, do you care to have them archived for your loved ones?  There is no right or wrong answer…there is only your answer.
  4. Who do I trust to do what I want with my digital assets? Whoever you choose will be your digital executor.  Not all states allow for specific digital executors, so be sure to consult with an estate planning professional to understand what your options are in your state.  Discuss your wishes and the location of the digital assets and password documents with this trusted family member, friend or associate…your chosen fiduciary.

Some suggested action steps:

  1. Complete an online tool, which is an electronic service provided by the custodian. It is separate from and overrides the TOSA and the estate planning documents.  Be sure that whatever provisions you call for in the provider’s access authorization tool match the provisions outlined in your estate planning documents.
  2. Depending on your desires and the nature of the digital assets, you can grant full access, partial access, or a copy of records. In the case of emails, you may have a choice between allowing access to a catalogue (a list of dates, times and email addresses of communications) or full access to the entirety of the catalogue AND content of the emails.
  3. Incorporate your answers and some of the appropriate action items above in to your existing estate planning documents. Seek professional estate planning advice to determine how to use your will, POAs, DPOAs, and trusts to facilitate your desires.  No two financial or estate plans are the same.  In the event of your death or temporary incapacitation, knowing that your digital assets can be managed in accordance with your wishes and not default settings selected in haste provides peace of mind.

We are more dependent on information in digital form for business and pleasure than ever before, and our dependency will continue to increase.  The Uniform Law Commission created and updated the Uniform Fiduciary Access to Digital Assets Act to address and standardize state fiduciary law in our technology driven world.  RUFADAA addresses internet user control of digital assets, uniformity of state fiduciary laws, and federal privacy laws.  Whether or not retinal scans for the purposes of targeted marketing to consumers while they are walking down the street are in our near future is something I cannot answer.  In a rush to get real time information and services, we are tempted to select “I accept” to Terms of Service and Licensing agreements in haste, without realizing that the digital assets we are creating are:  1) not ours forever and 2) not easy to get to when we are gone.  Financial and life planning won’t save us from having to read the details of TOSAs and licensing agreements, but we do have the tools available that help us seize and maintain control of our digital assets where we can.   Terry

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  1.  http://www.uniformlaws.org