Senate Bill 1834

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    Florida Senate - 1998                                  SB 1834

    By Senators Dyer and Horne





    6-770-98

  1                      A bill to be entitled

  2         An act relating to postsecondary education;

  3         providing legislative intent; providing

  4         definitions; establishing the Florida Higher

  5         Education Savings Trust; providing for

  6         participation agreements; establishing the

  7         Florida Higher Education Savings Program;

  8         providing for administration of the program and

  9         the trust by the State Board of Administration;

10         providing for the investment of funds in the

11         trust; providing for the trust to disburse

12         funds for the payment of higher education

13         expenses of designated beneficiaries; providing

14         for the withdrawal of funds in specified

15         circumstances; providing for reports by the

16         state board to the Governor, the Legislature,

17         depositors, and designated beneficiaries;

18         providing for taxation of the trust; pledging

19         that the state will not alter certain rights

20         under this act or contracts with the trust;

21         providing that this act does not guarantee

22         acceptance into any educational institution;

23         excluding moneys invested in the trust from

24         being considered assets for purposes of

25         financial aid needs testing; providing for

26         liberal construction of this act; providing

27         that this program should be considered a

28         "qualified state tuition program" under federal

29         law; providing for the state board to take

30         action to ensure that the trust complies with

31         certain laws, rules, and regulations;

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  1         prohibiting the state board from receiving fees

  2         from the trust, except for services rendered

  3         under a contract; providing severability;

  4         providing an effective date.

  5

  6  Be It Enacted by the Legislature of the State of Florida:

  7

  8         Section 1.  Accessibility of postsecondary education;

  9  legislative intent.--The Legislature recognizes that

10  affordability and accessibility of higher education is

11  essential to the welfare and well-being of the residents of

12  this state and is a critical state interest. Promoting and

13  enhancing a variety of opportunities for enrollment in

14  postsecondary institutions serves a legitimate public purpose.

15  Accordingly, as a supplement to existing programs that promote

16  educational opportunities to attend postsecondary

17  institutions, it is the intent of the Legislature to establish

18  a state trust fund that provides for a program to allow

19  persons to make contributions to an account that is

20  established for the purpose of meeting some or all of the

21  qualified higher education expenses of a designated

22  beneficiary, consistent with federal law authorizing such

23  programs. It is the further intent of the Legislature to

24  privatize the overall administration of such a program to

25  allow for the timely, efficient, and cost-effective conduct of

26  the program.

27         Section 2.  Definitions.--As used in sections 1-17 of

28  this act, the term:

29         (1)  "State board" means the State Board of

30  Administration.

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  1         (2)  "Depositor" means any person who makes a deposit,

  2  payment, contribution, gift, or other donation to the trust

  3  pursuant to a participation agreement.

  4         (3)  "Designated beneficiary" means:

  5         (a)  Any individual who is:

  6         1.  A state resident originally designated in the

  7  participation agreement;

  8         2.  Defined in s. 2032A(e)(2) of the Internal Revenue

  9  Code; or

10         3.  The recipient of a scholarship from interests in

11  the trust purchased by a state or local government or by an

12  organization described in s. 501(c)(3) of the Internal Revenue

13  Code and qualified under s. 529 of the Internal Revenue Code;

14  or

15         (b)  Any other designated beneficiary who qualifies

16  under s. 529 of the Internal Revenue Code and is enrolled in

17  the trust.

18         (4)  "Eligible educational institution" means an

19  institution of higher education that qualifies under s. 529 of

20  the Internal Revenue Code as an eligible educational

21  institution.

22         (5)  "Internal Revenue Code" means the Internal Revenue

23  Code of 1986, or a subsequent internal revenue code of the

24  United States, as amended.

25         (6)  "Participation agreements" means agreements

26  between the trust and depositors for participation in a

27  savings plan for a designated beneficiary.

28         (7)  "Qualified higher education expenses" means

29  tuition, room and board, fees, books, supplies, and equipment

30  required for the enrollment or attendance of a designated

31  beneficiary at an eligible educational institution, including

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  1  undergraduate and graduate schools, and any other higher

  2  education expenses that are allowed by s. 529 of the Internal

  3  Revenue Code.

  4         (8)  "Trust" means the Florida Higher Education Savings

  5  Trust.

  6         Section 3.  Florida Higher Education Savings Trust;

  7  establishment.--

  8         (1)  There is created and established within the state

  9  board the Florida Higher Education Savings Trust to promote

10  and enhance the affordability and accessibility of higher

11  education for residents of this state. The trust is an

12  instrumentality of the state and shall perform essential

13  governmental functions, as provided in this act. The trust

14  shall receive and hold all payments and deposits or

15  contributions intended for the trust, as well as gifts,

16  bequests, endowments, or federal, state, or local grants and

17  contributions from any other public or private source of

18  funds, and all earnings thereon, until disbursed in accordance

19  with this act.

20         (2)  The amounts on deposit in the trust are not the

21  property of the state, and the trust is not a department, an

22  institution, or an agency of the state. Amounts on deposit in

23  the trust must not be commingled with state funds, and the

24  state has no claim to or against, or interest in, such funds.

25  Any contract entered into by, or any obligation of, the trust

26  is not a debt or obligation of the state. The state has no

27  obligation to any designated beneficiary or any other person

28  on account of the trust, and all amounts obligated to be paid

29  from the trust are limited to amounts available for such

30  obligation and on deposit in the trust. The amounts on deposit

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  1  in the trust may be disbursed only in accordance with this

  2  act.

  3         (3)  The depositor retains ownership of all

  4  contributions made to the trust until the date of distribution

  5  to a designated beneficiary. Earnings derived from investment

  6  of the contributions are considered to be held in trust for

  7  the benefit of the designated beneficiary, except as applied

  8  for purposes of maintaining and administering the trust. An

  9  interest in the trust may not be used as security for a loan

10  by a designated beneficiary or depositor.

11         (4)  All amounts attributable to penalties are to be

12  used for purposes of the trust, and amounts other than

13  contributions which are received by the trust are objects of

14  the trust. Proceeds from penalties must remain with the trust

15  to offset any costs associated with raising cash to make

16  refunds.

17         (5)  The trust may not receive deposits in any form

18  other than cash. A depositor or designated beneficiary may

19  direct the investment of any contributions or amounts held in

20  the trust only in accordance with the specific fund options

21  provided for by the trust.

22         (6)  The trust shall continue in existence as long as

23  it holds any deposits or has any obligations and until its

24  existence is terminated by law. Upon termination of the trust,

25  any unclaimed assets of the trust revert to the state.

26         Section 4.  Participation agreements.--

27         (1)  A depositor must designate the name, address,

28  birth date, and social security number of the depositor and of

29  the designated beneficiary who will attend an eligible

30  educational institution. For newborns, the social security

31  number must be provided within 6 months after the date the

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  1  participation agreement is submitted. Distributions from

  2  accounts for which a valid social security number has not been

  3  provided may be subject to penalties and withholding taxes at

  4  the time of distribution.

  5         (2)  Participation agreements may be freely amended

  6  throughout their terms in order to enable participants to

  7  increase or decrease the level of participation, change

  8  designated beneficiaries, and carry out similar matters

  9  permitted by this act and the Internal Revenue Code.

10         (3)  Deposits made to the trust by participants may be

11  in the form of cash only. Depositors may contribute in the

12  form of a lump sum, installments, or, if and when available,

13  electronic funds transfers or employer payroll deductions.

14         (4)  Depositors shall demonstrate to the trust the need

15  for any account contributions that are in excess of the

16  projected costs of higher education for a designated

17  beneficiary of that age for an average private college in the

18  United States.

19         (5)  If it is determined that the depositor or the

20  designated beneficiary have made any material

21  misrepresentations in the application for a participation

22  agreement or in communication with the trust regarding the

23  program or regarding withdrawal or distribution of funds, the

24  account may be involuntarily liquidated by the trust. If the

25  account is so liquidated, the participant is entitled to a

26  refund less a 15-percent penalty on earnings.

27         Section 5.  Florida Higher Education Savings Program;

28  establishment; administration of program and trust.--

29         (1)  There is established the Florida Higher Education

30  Savings Program. The state board shall administer the program;

31  however, the state board shall let one or more contracts for

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  1  the promotion, administration, maintenance, investment,

  2  receipt, and disbursement of amounts in the trust. The

  3  contract or contracts must be competitively procured, unless

  4  the executive director of the state board finds that, in order

  5  to facilitate the startup of the trust and the program, it is

  6  in the best interests of the state to negotiate directly with

  7  one or more providers of such services. It is the intent of

  8  the Legislature that the administration of the program be

  9  self-funded and self-sustaining and privatized to the maximum

10  extent possible.

11         (2)  The state board, on behalf of and for the benefit

12  of the trust, may:

13         (a)  Receive and invest moneys in the trust in any

14  instruments, obligations, securities, or property in

15  accordance with section 6 of this act.

16         (b)  Establish consistent terms for each participation

17  agreement and bulk deposit and for coupon or installment

18  payments, including, but not limited to:

19         1.  The method of payment into the trust by payroll

20  deduction, transfer from bank accounts, or otherwise;

21         2.  The termination, withdrawal, or transfer of

22  payments under the trust, including transfers to or from a

23  qualified tuition program established by another state

24  pursuant to s. 529 of the Internal Revenue Code;

25         3.  Penalties for distributions not used or made in

26  accordance with s. 529(b)(3) of the Internal Revenue Code; 

27         4.  Procedures for changing the designated beneficiary;

28         5.  Any charges or fees imposed in connection with the

29  administration of the trust; and

30         6.  Safeguards that are adequate to prevent

31  contributions on behalf of a designated beneficiary which are

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  1  in excess of those necessary to provide for the qualified

  2  higher education expenses of the beneficiary.

  3         (c)  Enter into one or more contractual agreements,

  4  including, but not limited to, contracts for legal, actuarial,

  5  accounting, financial, custodial, advisory, management,

  6  administrative, advertising, marketing, and consulting

  7  services for the trust, and may pay for such services from the

  8  gains and earnings of the trust.

  9         (d)  Procure insurance in connection with property,

10  assets, activities, or deposits of the trust or contributions

11  to the trust.

12         (e)  Apply for, accept, and expend gifts, grants, or

13  donations from public or private sources to enable the trust

14  to carry out its objectives.

15         (f)  Adopt rules in accordance with chapter 120,

16  Florida Statutes, for purposes of implementing this act. 

17         (g)  Sue and be sued.

18         (h)  Establish one or more funds within the trust and

19  maintain separate accounts for each designated beneficiary.

20         (i)  Take any other action necessary to carry out the

21  purposes of this act and incidental to the duties imposed on

22  the Comptroller.

23         Section 6.  Investment of funds in the trust.--

24         (1)  The state board shall invest the amounts on

25  deposit in the trust in a manner that is reasonable and

26  appropriate for achieving the objectives of the trust and, in

27  doing so, shall exercise the discretion and care of a prudent

28  person in similar circumstances with similar objectives. The

29  state board shall give due consideration to rate of return,

30  risk, term or maturity, and diversification of the total

31  portfolio within the trust; liquidity; the projected

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  1  disbursements and expenditures; and the expected payments

  2  deposits, contributions, and gifts to be received. Consistent

  3  with the legislative intent to privatize the administration of

  4  the program and the trust, the state board shall, to the

  5  maximum extent possible, contract with one or more entities to

  6  make these investment decisions, and such entities shall

  7  exercise the same degree of discretion, care, and

  8  consideration as is required of the state board under this

  9  section. The state board may not require the trust to invest

10  directly in obligations of the state or any political

11  subdivision of the state or in any investment or other fund

12  administered by the state. The assets of the trust must be

13  continuously invested and reinvested in a manner consistent

14  with the objectives of the trust until disbursed for qualified

15  educational expenses, expended on costs incurred in the

16  operation and management of the trust, or refunded to the

17  depositor or designated beneficiary on the conditions provided

18  in the participation agreement.

19         (2)  Participation in the trust and the offering and

20  solicitation of the trust are exempt from state securities

21  law. The state board shall obtain written advice of counsel or

22  written advice from the Securities Exchange Commission, or

23  both, that the trust and the offering of participation in the

24  trust are not subject to federal securities laws.

25         Section 7.  Payment of higher education expenses.--

26         (1)  To withdraw moneys from the trust for the payment

27  of qualified higher education expenses, the trust must first

28  be advised as to which institution the designated beneficiary

29  will attend and the beneficiary's anticipated date of

30  enrollment. The trust shall then require information from the

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  1  selected institution which verifies the designated

  2  beneficiary's enrollment at the institution.

  3         (2)  Upon receipt of all required documentation, the

  4  trust must make distributions by check, jointly to the

  5  specified institution and the designated beneficiary.

  6         (3)  To make withdrawals from the trust for the payment

  7  of off-campus room and board and other allowed, qualified

  8  higher education expenses, the trust shall require from the

  9  designated beneficiary information that documents the expenses

10  being submitted. If a designated beneficiary resides off

11  campus, the trust shall pay directly to the designated

12  beneficiary an amount equal to the cost of lodging and meal

13  tickets for an academic period as established by the

14  institution for on-campus students.

15         (4)  Each distribution must consist of a pro-rata

16  distribution of contributions and earnings and must be made in

17  the manner prescribed by the trust consistent with the

18  regulations of the United States Treasury Department or

19  Internal Revenue Service.

20         (5)  All distributions made during a taxable year must

21  be treated as one distribution.

22         Section 8.  Withdrawal of funds.--

23         (1)  A participant may withdraw funds from the trust.

24  The depositor is entitled to the return of the principal

25  amount of all contributions made by the depositor plus actual

26  investment earnings or minus actual investment losses on the

27  contributions less an administrative fee that must be

28  sufficient to reasonably compensate for the administrative

29  costs incident to the depositor's account.

30         (2)  Notwithstanding subsection (1), upon occurrence of

31  any of the following circumstances, an administrative fee may

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  1  not be levied if a depositor requests withdrawal of funds from

  2  the trust:

  3         (a)  Death of the beneficiary;

  4         (b)  Permanent disability or mental incapacity of the

  5  beneficiary;

  6         (c)  Scholarship, allowance, or payment received by the

  7  beneficiary to the extent that the amount of the refund does

  8  not exceed the amount of the scholarship, allowance, or

  9  payment in accordance with federal law; or

10         (d)  Other circumstances permitted by the Internal

11  Revenue Code.

12         (3)  If a participant requests withdrawal or refund of

13  funds contributed to the trust for any reason other than those

14  listed in subsection (2), there shall be imposed a penalty of

15  15 percent of the earnings of the account and any applicable

16  taxes (total account value less aggregate contributions).

17         (4)  If an account of a designated beneficiary remains

18  unused for a period of 6 consecutive years after the

19  beneficiary first becomes eligible to attend an eligible

20  educational institution, the balance must be declared

21  unclaimed property and is subject to chapter 717, Florida

22  Statutes.

23         Section 9.  Reporting.--Annually, on or before

24  September 30, the state board shall cause to be published a

25  report on the operations of the trust, which must include the

26  receipts, disbursements, assets, investments, liabilities, and

27  administrative costs of the trust for the preceding fiscal

28  year. The state board shall also submit the report to the

29  Governor, the President of the Senate, the Speaker of the

30  House of Representatives, and the minority leaders of the

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  1  House and Senate, and shall make the report available to each

  2  depositor and designated beneficiary.

  3         Section 10.  Taxation of trust.--The property of the

  4  trust and the earnings on the trust are exempt from all

  5  taxation by the state and all political subdivisions of the

  6  state.

  7         Section 11.  State pledge.--The state pledges to

  8  depositors, designated beneficiaries, and any party who enters

  9  into contracts with the trust that the state will not limit or

10  alter their rights under this act which are vested in the

11  trust or under contract with the trust until such obligations

12  are fully met and discharged and such contracts are fully

13  performed on the part of the trust; however, this section does

14  not preclude such limitation or alteration if adequate

15  provision is made by law for the protection of such depositors

16  and designated beneficiaries pursuant to the obligations of

17  the trust or parties who entered into such contracts with the

18  trust. The trust, on behalf of the state, may include this

19  pledge and undertaking for the state in participation

20  agreements and such other obligations or contracts.

21         Section 12.  Enrollment in institutions.--Neither any

22  provision of this act nor any participation agreement

23  constitutes or may be considered to constitute an agreement,

24  pledge, promise, or guarantee of admission or continued

25  enrollment of any designated beneficiary or any other person

26  to any eligible educational institution in the state or to any

27  other institution of higher education.

28         Section 13.  Exclusion from financial aids needs

29  test.--Notwithstanding any other provision of general or

30  special law, moneys invested in the trust may not be

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  1  considered an asset for purposes of financial aid needs

  2  testing.

  3         Section 14.  Continued compliance with federal and

  4  state law.--This act shall be liberally construed in order to

  5  effectuate the purposes and intent of the act. It is the

  6  intent of the Legislature that the tuition savings program

  7  established in this act be a "qualified state tuition program"

  8  under s. 529 of the Internal Revenue Code. The state board and

  9  the executive director of the state board shall take any

10  action necessary to ensure that the trust complies with all

11  applicable requirements of federal and state laws, rules, and

12  regulations to the extent necessary for the trust to

13  constitute a qualified state tuition program under s. 529 of

14  the Internal Revenue Code.

15         Section 15.  Administrative fee.--The state board is

16  not entitled to receive a fee from the trust; however, the

17  state board may receive a fee for services rendered to the

18  trust pursuant to a contract.

19         Section 16.  If any provision of this act or the

20  application thereof to any person or circumstance is held

21  invalid, the invalidity does not affect other provisions or

22  applications of the act which can be given effect without the

23  invalid provision or application, and to this end the

24  provisions of this act are declared severable.

25         Section 17.  This act shall take effect upon becoming a

26  law.

27

28            *****************************************

29                          SENATE SUMMARY

30    Provides for the creation of the Florida Higher Education
      Savings Trust and the Florida Higher Education Savings
31    Program, to be administered by the State Board of
      Administration. (See bill for details.)
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