Bill Text: FL S0828 | 2020 | Regular Session | Enrolled


Bill Title: Florida ABLE Program

Spectrum: Partisan Bill (Republican 1-0)

Status: (Passed) 2020-04-09 - Chapter No. 2020-14 [S0828 Detail]

Download: Florida-2020-S0828-Enrolled.html
       ENROLLED
       2020 Legislature                                          SB 828
       
       
       
       
       
       
                                                              2020828er
    1  
    2         An act relating to the Florida ABLE program; amending
    3         s. 1009.986, F.S.; abrogating the future repeal of
    4         provisions relating to the Florida ABLE program;
    5         providing an effective date.
    6          
    7  Be It Enacted by the Legislature of the State of Florida:
    8  
    9         Section 1. Subsection (12) of section 1009.986, Florida
   10  Statutes, is amended, and subsections (1) through (11) of that
   11  section are republished, to read:
   12         1009.986 Florida ABLE program.—
   13         (1) LEGISLATIVE INTENT.—It is the intent of the Legislature
   14  to establish a qualified ABLE program in this state which will
   15  encourage and assist the saving of private funds in tax-exempt
   16  accounts in order to pay for the qualified disability expenses
   17  of eligible individuals with disabilities. The Legislature
   18  intends that the qualified ABLE program be implemented in a
   19  manner that is consistent with federal law authorizing the
   20  program and that maximizes program efficiency and effectiveness.
   21         (2) DEFINITIONS.—As used in ss. 1009.987 and 1009.988 and
   22  this section, the term:
   23         (a) “ABLE account” means an account established and
   24  maintained under the Florida ABLE program.
   25         (b) “Contracting state” means a state that has entered into
   26  a contract with Florida ABLE, Inc., to provide residents of
   27  Florida or that state with access to a qualified ABLE program.
   28         (c) “Designated beneficiary” means the eligible individual
   29  who established an ABLE account or the eligible individual to
   30  whom an ABLE account was transferred.
   31         (d) “Eligible individual” has the same meaning as provided
   32  in s. 529A of the Internal Revenue Code.
   33         (e) “Florida ABLE program” means the qualified ABLE program
   34  established and maintained under this section by Florida ABLE,
   35  Inc.
   36         (f) “Internal Revenue Code” means the United States
   37  Internal Revenue Code of 1986, as defined in s. 220.03(1), and
   38  regulations adopted pursuant thereto.
   39         (g) “Participation agreement” means the agreement between
   40  Florida ABLE, Inc., and a participant in the Florida ABLE
   41  program.
   42         (h) “Qualified ABLE program” means the program authorized
   43  under s. 529A of the Internal Revenue Code which may be
   44  established by a state or agency, or instrumentality thereof, to
   45  allow a person to make contributions for a taxable year to an
   46  ABLE account established for the purpose of meeting the
   47  qualified disability expenses of the designated beneficiary of
   48  the ABLE account.
   49         (i) “Qualified disability expense” has the same meaning as
   50  provided in s. 529A of the Internal Revenue Code.
   51         (3) DIRECT-SUPPORT ORGANIZATION; FLORIDA ABLE, INC.—
   52         (a) The Florida Prepaid College Board shall establish a
   53  direct-support organization to be known as “Florida ABLE, Inc.,”
   54  which is:
   55         1. A Florida not-for-profit corporation registered,
   56  incorporated, organized, and operated in compliance with chapter
   57  617.
   58         2. Organized and operated to receive, hold, invest, and
   59  administer property and to make expenditures for the benefit of
   60  the Florida ABLE program.
   61         (b) Florida ABLE, Inc., shall operate under a written
   62  contract with the Florida Prepaid College Board. The contract
   63  must include, but is not limited to, provisions that require:
   64         1. The articles of incorporation and bylaws of Florida
   65  ABLE, Inc., to be approved by the Florida Prepaid College Board.
   66         2. Florida ABLE, Inc., to submit an annual budget for
   67  approval by the Florida Prepaid College Board. The budget must
   68  comply with rules adopted by the Florida Prepaid College Board.
   69         3. Florida ABLE, Inc., to pay reasonable consideration to
   70  the Florida Prepaid College Board for products or services
   71  provided directly or indirectly by the Florida Prepaid College
   72  Board.
   73         4. The Florida Prepaid College Board to solicit proposals,
   74  to contract or subcontract, or to amend contractual service
   75  agreements of the Florida Prepaid College Board for the benefit
   76  of Florida ABLE, Inc.
   77         5. The Florida Prepaid College Board to maintain the
   78  website of Florida ABLE, Inc.
   79         6. The Florida Prepaid College Board to annually certify
   80  that Florida ABLE, Inc., is complying with the terms of the
   81  contract and acting in a manner consistent with this section and
   82  in the best interest of the state. The certification must be
   83  reported in the official minutes of a meeting of the Florida
   84  Prepaid College Board.
   85         7. The disclosure of material provisions in the contract
   86  and of the distinction between the Florida Prepaid College Board
   87  and Florida ABLE, Inc., to donors of gifts, contributions, or
   88  bequests, and the inclusion of such disclosure on all
   89  promotional and fundraising publications.
   90         8. The fiscal year for Florida ABLE, Inc., to begin on July
   91  1 and end on June 30 of the following year.
   92         (c) Florida ABLE, Inc., shall provide for an annual
   93  financial audit in accordance with s. 215.981. The Florida
   94  Prepaid College Board and the Auditor General may require
   95  Florida ABLE, Inc., or its independent auditor, to provide any
   96  supplemental data relating to the operation of Florida ABLE,
   97  Inc.
   98         (d)1. The board of directors of Florida ABLE, Inc., shall
   99  consist of:
  100         a. The chair of the Florida Prepaid College Board, who
  101  shall serve as the chair of the board of directors of Florida
  102  ABLE, Inc.
  103         b. One individual who possesses knowledge, skill, and
  104  experience in the areas of accounting, risk management, or
  105  investment management, who shall be appointed by the Florida
  106  Prepaid College Board. A current member of the Florida Prepaid
  107  College Board, other than the chair, may be appointed.
  108         c. One individual who possesses knowledge, skill, and
  109  experience in the areas of accounting, risk management, or
  110  investment management, who shall be appointed by the Governor.
  111         d. Two individuals who are advocates of persons with
  112  disabilities, one of whom shall be appointed by the President of
  113  the Senate and one of whom shall be appointed by the Speaker of
  114  the House of Representatives. At least one of the individuals
  115  appointed under this sub-subparagraph must be an advocate of
  116  persons with developmental disabilities, as that term is defined
  117  in s. 393.063.
  118         2.a. The term of the appointee under sub-subparagraph 1.b.
  119  shall be up to 3 years as determined by the Florida Prepaid
  120  College Board. Such appointee may be reappointed.
  121         b. The term of the appointees under sub-subparagraphs 1.c.
  122  and d. shall be 3 years. Such appointees may be reappointed for
  123  up to one consecutive term.
  124         3. Unless authorized by the board of directors of Florida
  125  ABLE, Inc., an individual director has no authority to control
  126  or direct the operations of Florida ABLE, Inc., or the actions
  127  of its officers and employees.
  128         4. The board of directors of Florida ABLE, Inc.:
  129         a. Shall meet at least quarterly and at other times upon
  130  the call of the chair.
  131         b. May use any method of telecommunications to conduct, or
  132  establish a quorum at, its meetings or the meetings of a
  133  subcommittee or other subdivision if the public is given proper
  134  notice of the telecommunications meeting and provided reasonable
  135  access to observe and, if appropriate, to participate.
  136         5. A majority of the total current membership of the board
  137  of directors of Florida ABLE, Inc., constitutes a quorum of the
  138  board.
  139         6. Members of the board of directors of Florida ABLE, Inc.,
  140  and the board’s subcommittees or other subdivisions shall serve
  141  without compensation; however, the members may be reimbursed for
  142  reasonable, necessary, and actual travel expenses pursuant to s.
  143  112.061.
  144         (e) Subject to rule adopted by the Florida Prepaid College
  145  Board, Florida ABLE, Inc., may use property, other than money,
  146  facilities, and personal services of the Florida Prepaid College
  147  Board, provided that Florida ABLE, Inc., offers equal employment
  148  opportunities to all persons regardless of race, color,
  149  religion, sex, age, or national origin. As used in this
  150  paragraph, the term “personal services” means use of the Florida
  151  Prepaid College Board’s full-time and part-time personnel,
  152  payroll processing services, and other services prescribed by
  153  rule of the Florida Prepaid College Board.
  154         (4) FLORIDA ABLE PROGRAM.—
  155         (a) On or before July 1, 2016, Florida ABLE, Inc., shall
  156  establish and administer the Florida ABLE program. Before
  157  implementing the program, Florida ABLE, Inc., must obtain a
  158  written opinion from counsel specializing in:
  159         1. Federal tax matters which indicates that the Florida
  160  ABLE program is designed to comply with s. 529A of the Internal
  161  Revenue Code.
  162         2. Federal securities law which indicates that the Florida
  163  ABLE program and the offering of participation in the program
  164  are designed to comply with applicable federal securities law
  165  and qualify for the available tax exemptions under such law.
  166         (b) The participation agreement must include provisions
  167  specifying that:
  168         1. The participation agreement is only a debt or obligation
  169  of the Florida ABLE program and the Florida ABLE Program Trust
  170  Fund and, as provided under paragraph (f), is not a debt or
  171  obligation of the Florida Prepaid College Board or the state.
  172         2. Participation in the Florida ABLE program does not
  173  guarantee that sufficient funds will be available to cover all
  174  qualified disability expenses for any designated beneficiary and
  175  does not guarantee the receipt or continuation of any product or
  176  service for the designated beneficiary.
  177         3. The designated beneficiary must be a resident of this
  178  state or a resident of a contracting state at the time the ABLE
  179  account is established.
  180         4. The establishment of an ABLE account in violation of
  181  federal law is prohibited.
  182         5. Contributions in excess of the limitations set forth in
  183  s. 529A of the Internal Revenue Code are prohibited.
  184         6. The state is a creditor of ABLE accounts as, and to the
  185  extent, set forth in s. 529A of the Internal Revenue Code.
  186         7. Material misrepresentations by a party to the
  187  participation agreement, other than Florida ABLE, Inc., in the
  188  application for the participation agreement or in any
  189  communication with Florida ABLE, Inc., regarding the Florida
  190  ABLE program may result in the involuntary liquidation of the
  191  ABLE account. If an account is involuntarily liquidated, the
  192  designated beneficiary is entitled to a refund, subject to any
  193  fees or penalties provided by the participation agreement and
  194  the Internal Revenue Code.
  195         (c) The participation agreement may include provisions
  196  specifying:
  197         1. The requirements and applicable restrictions for opening
  198  an ABLE account.
  199         2. The eligibility requirements for a party to a
  200  participation agreement and the rights of the party.
  201         3. The requirements and applicable restrictions for making
  202  contributions to an ABLE account.
  203         4. The requirements and applicable restrictions for
  204  directing the investment of the contributions or balance of the
  205  ABLE account.
  206         5. The administrative fee and other fees and penalties
  207  applicable to an ABLE account.
  208         6. The terms and conditions under which an ABLE account or
  209  participation agreement may be modified, transferred, or
  210  terminated.
  211         7. The disposition of abandoned ABLE accounts.
  212         8. Other terms and conditions determined to be necessary or
  213  proper.
  214         (d) The participation agreement may be amended throughout
  215  its term for purposes that include, but are not limited to,
  216  allowing a participant to increase or decrease the level of
  217  participation and to change designated beneficiaries and other
  218  matters authorized by this section and s. 529A of the Internal
  219  Revenue Code.
  220         (e) If an ABLE account is determined to be abandoned
  221  pursuant to rules adopted by the Florida Prepaid College Board,
  222  Florida ABLE, Inc., may use the balance of the account to
  223  operate the Florida ABLE program.
  224         (f) A contract or participation agreement entered into by
  225  or an obligation of Florida ABLE, Inc., on behalf of and for the
  226  benefit of the Florida ABLE program does not constitute a debt
  227  or obligation of the Florida Prepaid College Board or the state,
  228  but is only a debt or obligation of the Florida ABLE program and
  229  the Florida ABLE Program Trust Fund. The state does not have an
  230  obligation to a designated beneficiary or any other person as a
  231  result of the Florida ABLE program. The obligation of the
  232  Florida ABLE program is limited solely to amounts in the Florida
  233  ABLE Program Trust Fund. All amounts obligated to be paid from
  234  the Florida ABLE Program Trust Fund are limited to the amounts
  235  available for such obligation. The amounts held in the Florida
  236  ABLE program may be disbursed only in accordance with this
  237  section.
  238         (g) Notwithstanding any other provision of law, Florida
  239  ABLE, Inc., may enter into an agreement with a contracting state
  240  which allows Florida ABLE, Inc., to participate under the
  241  design, operation, and rules of the contracting state’s
  242  qualified ABLE program or which allows the contracting state to
  243  participate under the Florida ABLE program.
  244         (h) The Florida ABLE program shall continue in existence
  245  until terminated by law. If the state determines that the
  246  program is financially infeasible, the state may terminate the
  247  program. Upon termination, amounts in the Florida ABLE Program
  248  Trust Fund held for designated beneficiaries shall be returned
  249  in accordance with the participation agreement.
  250         (i) The state pledges to the designated beneficiaries that
  251  the state will not limit or alter their rights under this
  252  section which are vested in the Florida ABLE program until the
  253  program’s obligations are met and discharged. However, this
  254  paragraph does not preclude such limitation or alteration if
  255  adequate provision is made by law for the protection of the
  256  designated beneficiaries pursuant to the obligations of Florida
  257  ABLE, Inc., and does not preclude termination of the Florida
  258  ABLE program if the state determines that the program is not
  259  financially feasible. This pledge and undertaking by the state
  260  may be included in participation agreements.
  261         (5) COMPREHENSIVE INVESTMENT PLAN.—Florida ABLE, Inc.,
  262  shall establish a comprehensive investment plan for the Florida
  263  ABLE program, subject to the approval of the Florida Prepaid
  264  College Board. The comprehensive investment plan must specify
  265  the investment policies to be used by Florida ABLE, Inc., in its
  266  administration of the program. Florida ABLE, Inc., may place
  267  assets of the program in investment products and in such
  268  proportions as may be designated or approved in the
  269  comprehensive investment plan. Such products shall be
  270  underwritten and offered in compliance with the applicable
  271  federal and state laws or regulations or exemptions therefrom. A
  272  designated beneficiary may not direct the investment of any
  273  contributions to the Florida ABLE program, unless specific fund
  274  options are offered by Florida ABLE, Inc. Directors, officers,
  275  and employees of Florida ABLE, Inc., may enter into
  276  participation agreements, notwithstanding their fiduciary
  277  responsibilities or official duties related to the Florida ABLE
  278  program.
  279         (6) EXEMPTION FROM CLAIMS OF CREDITORS.—Moneys paid into or
  280  out of the Florida ABLE Program Trust Fund by or on behalf of a
  281  designated beneficiary are exempt, as provided by s. 222.22,
  282  from all claims of creditors of the designated beneficiary if
  283  the participation agreement has not been terminated. Moneys paid
  284  into the Florida ABLE program and benefits accrued through the
  285  program may not be pledged for the purpose of securing a loan.
  286         (7) MEDICAID RECOVERY; PRIORITY OF DISTRIBUTIONS.—
  287         (a) Unless prohibited by federal law, upon the death of a
  288  designated beneficiary, funds in the ABLE account must first be
  289  distributed for qualified disability expenses then transferred
  290  to the estate of the designated beneficiary or an ABLE account
  291  of another eligible individual specified by the designated
  292  beneficiary or by the estate of the designated beneficiary.
  293         (b) Except as required by federal law, the state Medicaid
  294  program may not file a claim for Medicaid recovery of funds in
  295  an ABLE account.
  296         (c) Florida ABLE, Inc., shall assist and cooperate with the
  297  Agency for Health Care Administration and Medicaid programs in
  298  other states by providing the agency and programs with the
  299  information needed to accomplish the purpose and objective of
  300  this subsection.
  301         (8) PAYROLL DEDUCTION AUTHORITY.—The payroll deduction
  302  authority provided under s. 1009.975 applies to the Florida
  303  Prepaid College Board and Florida ABLE, Inc., for purposes of
  304  administering this section.
  305         (9) REPORTS.—
  306         (a) On or before November 1, 2015, Florida ABLE, Inc.,
  307  shall prepare a report on the status of the establishment of the
  308  Florida ABLE program by Florida ABLE, Inc. The report must also
  309  include, if warranted, recommendations for statutory changes to
  310  enhance the effectiveness and efficiency of the program. Florida
  311  ABLE, Inc., shall submit copies of the report to the Governor,
  312  the President of the Senate, and the Speaker of the House of
  313  Representatives.
  314         (b) On or before March 31 of each year, Florida ABLE, Inc.,
  315  shall prepare or cause to be prepared a report setting forth in
  316  appropriate detail an accounting of the Florida ABLE program
  317  which includes a description of the financial condition of the
  318  program at the close of the fiscal year. Florida ABLE, Inc.,
  319  shall submit copies of the report to the Governor, the President
  320  of the Senate, the Speaker of the House of Representatives, and
  321  the minority leaders of the Senate and the House of
  322  Representatives and shall make the report available to each
  323  designated beneficiary. The accounts of the Florida ABLE program
  324  are subject to annual audit by the Auditor General.
  325         (10) RULES.—The Florida Prepaid College Board shall adopt
  326  rules to administer this section. Such rules must include, but
  327  are not limited to:
  328         (a) Specifying the procedures by which Florida ABLE, Inc.,
  329  shall be governed and operate, including requirements for the
  330  budget of Florida ABLE, Inc., and conditions with which Florida
  331  ABLE, Inc., must comply to use property, facilities, or personal
  332  services of the Florida Prepaid College Board.
  333         (b) The procedures for determining that an ABLE account has
  334  been abandoned.
  335         (c) Adoption of provisions determined necessary by the
  336  Florida Prepaid College Board for the Florida ABLE program to
  337  retain its status as a qualified ABLE program or the tax-exempt
  338  status or other similar status of the program or its
  339  participants under the Internal Revenue Code. Florida ABLE,
  340  Inc., shall inform participants in the Florida ABLE program of
  341  changes to the tax or securities status of their interests in
  342  the ABLE program and participation agreements.
  343         (11) STATE OUTREACH PARTNERS.—The Agency for Health Care
  344  Administration, the Agency for Persons with Disabilities, the
  345  Department of Children and Families, and the Department of
  346  Education shall assist, cooperate, and coordinate with Florida
  347  ABLE, Inc., in the provision of public information and outreach
  348  for the Florida ABLE program.
  349         (12) REPEAL.—In accordance with s. 20.058, this section is
  350  repealed October 1, 2020, unless reviewed and saved from repeal
  351  by the Legislature.
  352         Section 2. This act shall take effect upon becoming a law.

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