House Bill 4487

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    Florida House of Representatives - 1998                HB 4487

        By Representatives Fasano, Boyd, Wise, K. Pruitt, Edwards,
    Melvin, Posey, Lawson and Kelly





  1                      A bill to be entitled

  2         An act relating to postsecondary education;

  3         creating s. 240.555, F.S.; establishing the

  4         Florida Higher Education Savings Program;

  5         providing intent; providing definitions;

  6         providing for establishment and administration

  7         of the Florida Higher Education Savings Trust;

  8         providing for participation agreements;

  9         providing for investment of funds in the trust;

10         providing for payment of higher education

11         expenses from the trust; providing for

12         withdrawals from the fund; providing penalties;

13         requiring annual reporting; providing for

14         exemption from state and local taxes; providing

15         a state pledge; providing applicability with

16         respect to enrollment in institutions of higher

17         education; providing that moneys in the trust

18         are not assets for financial aid needs testing;

19         providing for liberal construction; requiring

20         certain legal opinions prior to implementation;

21         providing for startup funding; providing

22         severability; providing an effective date.

23

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

25

26         Section 1.  Section 240.555, Florida Statutes, is

27  created to read:

28         240.555  Florida Higher Education Savings Program.--

29         (1)  The Legislature recognizes that affordability and

30  accessibility of higher education is essential to the welfare

31  and well-being of the residents of the state and is a critical

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  1  state interest. Promoting and enhancing a variety of

  2  opportunities to attend postsecondary institutions serves a

  3  legitimate public purpose. Accordingly, as a supplement and

  4  option to existing programs that promote educational

  5  opportunities to attend postsecondary institutions such as the

  6  Florida Prepaid Postsecondary Education Expense Program, it is

  7  the intent of the Legislature to establish a state higher

  8  education trust program to allow persons to make contributions

  9  to a trust account that is established for the purpose of

10  meeting some or all of the qualified higher education expenses

11  of a designated beneficiary, consistent with federal law

12  authorizing such programs. It is the intent of the Legislature

13  that this trust program, which does not guarantee tuition to

14  any institution, provide a choice to persons who determine

15  that the overall educational needs of their families are best

16  suited to a savings program, those who may wish to save to

17  meet postsecondary educational needs beyond the traditional

18  4-year curriculum, or those whose financial planning

19  circumstances may better fit a savings plan. It is further the

20  intent of the Legislature to privatize the overall

21  administration of such a program to allow for the timely,

22  efficient, and cost-effective conduct of the program.

23         (2)  As used in this section:

24         (a)  "Commissioner" means the Commissioner of

25  Education.

26         (b)  "Depositor" means any person making a deposit,

27  payment, contribution, gift, or other expenditure to the trust

28  pursuant to a participation agreement.

29         (c)  "Designated beneficiary" means:

30         1.  Any individual state resident originally designated

31  in the participation agreement;

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  1         2.  Any individual defined in s. 2032A(e)(2) of the

  2  Internal Revenue Code;

  3         3.  Any individual receiving a scholarship from

  4  interests in the trust purchased by a state or local

  5  government or an organization described in s. 501(c)(3) of the

  6  Internal Revenue Code and qualified under s. 529 of the

  7  Internal Revenue Code; or

  8         4.  Any other individual enrolled in the trust who

  9  qualifies as a designated beneficiary under s. 529 of the

10  Internal Revenue Code.

11         (d)  "Eligible educational institution" means an

12  institution of higher education qualifying under s. 529 of the

13  Internal Revenue Code as an eligible educational institution.

14         (e)  "Internal Revenue Code" means the Internal Revenue

15  Code of 1986, or any subsequent corresponding internal revenue

16  code of the United States, as amended from time to time.

17         (f)  "Participation agreement" means an agreement

18  between the trust and a depositor for participation in a

19  savings plan for a designated beneficiary.

20         (g)  "Program" means the Florida Higher Education

21  Savings Program.

22         (h)  "Qualified higher education expenses" means

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

24  required for the enrollment or attendance of a designated

25  beneficiary at an eligible educational institution, including

26  undergraduate and graduate schools, and any other higher

27  education expenses that may be permitted under s. 529 of the

28  Internal Revenue Code.

29         (i)  "Trust" means the Florida Higher Education Savings

30  Trust.

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  1         (3)(a)  There is created and established within the

  2  Office of the Commissioner of Education the Florida Higher

  3  Education Savings Trust to promote and enhance the

  4  affordability and accessibility of higher education in the

  5  state. The trust shall constitute an instrumentality of the

  6  state and shall perform essential governmental functions, as

  7  provided in this section. The trust shall receive and hold all

  8  payments, deposits, and contributions intended for the trust,

  9  as well as gifts, bequests, endowments, and federal, state, or

10  local grants and any other public or private source of funds

11  and all earnings, until disbursed in accordance with

12  subsection (7) or subsection (8).

13         (b)  The amounts on deposit in the trust shall not

14  constitute property of the state, and the trust shall not be

15  construed to be a department, institution, or agency of the

16  state. Amounts on deposit in the trust shall not be commingled

17  with state funds, and the state shall have no claim to or

18  against, or interest in, such funds, except as provided by

19  contract as set forth in subsection (16). Any contract entered

20  into by or any obligation of the trust shall not constitute a

21  debt or obligation of the state. The state shall have no

22  obligation to any designated beneficiary or any other person

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

24  from the trust shall be limited to amounts available for such

25  obligation on deposit in the trust. The amounts on deposit in

26  the trust may only be disbursed in accordance with the

27  provisions of this section. Each participation agreement shall

28  clearly state that the contract is not a debt or obligation of

29  the state, the Department of Education, or any eligible

30  educational institution.

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  1         (c)  The depositor retains ownership of all amounts on

  2  deposit in his or her account with the trust up to the date of

  3  distribution to a designated beneficiary. Earnings derived

  4  from investment of the contributions are considered to be held

  5  in trust in the same manner as contributions, except as

  6  applied for purposes of the designated beneficiary and for

  7  purposes of maintaining and administering the trust and the

  8  program and repaying any advancement of funds as provided in

  9  this section. Nothing in this paragraph or in any other

10  provision of this section shall permit any interest in the

11  trust to be used as security for a loan by a designated

12  beneficiary or depositor.

13         (d)  All amounts attributable to penalties shall be

14  used for purposes of the trust, and other amounts received

15  other than contributions shall be considered properties of the

16  trust. Proceeds from penalties shall remain with the trust and

17  may be used for any costs or purposes of the trust.

18         (e)  The trust may not receive deposits in any form

19  other than cash. No depositor or designated beneficiary may

20  direct the investment of any contributions or amounts held in

21  the trust other than the specific fund options provided for by

22  the trust, if any.

23         (f)  The trust shall continue in existence as long as

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

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

26  any unclaimed assets in the trust shall revert to the state in

27  accordance with general law regarding unclaimed property.

28         (4)(a)  A depositor must designate the name, address,

29  date of birth, and social security number for the depositor

30  and the designated beneficiary who will attend an eligible

31  educational institution. For newborns, the social security

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

  2  participation agreement is submitted. Distributions from

  3  accounts that lack a valid social security number may be

  4  subject to penalties and withholding taxes at the time of

  5  distribution.

  6         (b)  Participation agreements may be freely amended

  7  throughout their terms in order to enable depositors to

  8  increase or decrease the level of participation, change

  9  designated beneficiaries, and carry out similar matters

10  permitted by this section and the Internal Revenue Code.

11         (c)  Deposits to the trust by depositors may only be in

12  cash. Depositors may contribute in a lump sum, in

13  installments, or, when and if available, through electronic

14  funds transfer or employer payroll deductions.

15         (d)  Depositors shall be required to demonstrate to the

16  trust the need for account contributions in excess of the

17  projected costs of higher education for a designated

18  beneficiary of that age for an average national private

19  college.

20         (e)  If it is determined that the depositor or the

21  designated beneficiary has made any material misrepresentation

22  in the application for a participation agreement or in any

23  communication with the trust regarding the program, especially

24  withdrawal or distribution of funds therefrom, then the

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

26  account is so liquidated, the depositor shall be entitled to a

27  refund, subject to a 15-percent penalty or such lower amount

28  as provided by the Internal Revenue Code.

29         (5)(a)  To provide for regulation and administration of

30  the trust, there is established the Florida Higher Education

31  Savings Program. The program shall be administered by the

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  1  Commissioner of Education; however, the commissioner shall, to

  2  the maximum extent possible, let one or more contracts for the

  3  promotion, management, administration, maintenance,

  4  accounting, investment, receipt, and disbursement of amounts

  5  in the trust. Such contract or contracts shall be

  6  competitively procured, unless the commissioner finds that in

  7  order to facilitate the startup of the trust and program it is

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

  9  one or more providers of such services. Such contract or

10  contracts shall be for a term determined by the commissioner.

11  It is the intent of the Legislature that the administration of

12  the program be self-funded, self-sustaining, and privatized to

13  the maximum extent possible.

14         (b)  The commissioner, on behalf and for the benefit of

15  the trust, may:

16         1.  Receive and invest moneys in the trust in any

17  instruments, obligations, securities, or property in

18  accordance with subsection (6).

19         2.  Establish consistent provisions for each

20  participation agreement, bulk deposit, coupon, or installment

21  payment, including, but not limited to:

22         a.  The method of payment into the trust by payroll

23  deduction, transfer from a bank account, or other means.

24         b.  The termination, withdrawal, or transfer of

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

26  qualified tuition program established by another state

27  pursuant to s. 529 of the Internal Revenue Code.

28         c.  Penalties for distributions not used or made in

29  accordance with s. 529 of the Internal Revenue Code.

30         d.  The requirements for changing the identity of the

31  designated beneficiary.

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  1         e.  Any charges or fees in connection with the

  2  administration of the trust.

  3         f.  Adequate safeguards to prevent contributions on

  4  behalf of a designated beneficiary in excess of those

  5  necessary to provide for the qualified higher education

  6  expenses of the beneficiary.

  7         3.  Enter into one or more contractual agreements,

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

  9  accounting, financial, custodial, advisory, management,

10  administrative, advertising, marketing, and consulting

11  services for the trust, and pay for such services from the

12  gains and earnings of the trust or from funds advanced as

13  described in subsection (16). Any such contractual agreement

14  shall be with an entity or entities experienced in managing or

15  providing the services called for in the contract.

16         4.  Procure insurance in connection with the trust's

17  property, assets, or activities or in connection with deposits

18  in or contributions to the trust.

19         5.  Apply for, accept, and expend gifts, grants, or

20  donations from public or private sources to enable the trust

21  to carry out its objectives.

22         6.  Adopt rules in accordance with chapter 120 for

23  purposes of this section.

24         7.  Sue and be sued.

25         8.  Maintain separate accounts for each designated

26  beneficiary and establish other accounts within the trust as

27  necessary to appropriately account for all funds held in the

28  trust.

29         9.  Hire necessary staff and lease or purchase

30  necessary office space or equipment and other services

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  1  necessary to carry out the purposes of this program, the costs

  2  of which are to be paid as provided in subsection (16).

  3         10.  Take any other action necessary to carry out the

  4  purposes of this section and incidental to the duties imposed

  5  on the commissioner.

  6         (6)(a)  The commissioner shall invest the amounts on

  7  deposit in the trust in a manner reasonable and appropriate to

  8  achieve the objectives of the trust, exercising the discretion

  9  and care of a prudent person in similar circumstances with

10  similar objectives. The commissioner shall give due

11  consideration to rate of return, risk, term of maturity,

12  diversification of total portfolio within the trust,

13  liquidity, projected disbursements and expenditures, and

14  expected payments, deposits, contributions, and gifts to be

15  received. Moneys in the trust are exempt from the investment

16  requirements of s. 18.10, but are subject to the investment

17  restrictions contained in s. 215.472. Consistent with the

18  legislative intent to privatize the administration of the

19  program and the trust, the commissioner shall, to the maximum

20  extent possible, contract with one or more qualified,

21  experienced entities to make these investment decisions, and

22  such entities shall be required to exercise the same degree of

23  discretion, care, and consideration described in this

24  paragraph. The commissioner shall not require the trust to

25  invest directly in obligations of the state or any political

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

27  administered by the state. The assets of the trust shall be

28  continuously invested and reinvested in a manner consistent

29  with the purposes of the trust, expended on expenses incurred

30  by the operation and management of the trust and program, or

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  1  refunded to the depositor or designated beneficiary on the

  2  conditions provided in the participation agreement.

  3         (b)  Participation in the trust and the offering and

  4  solicitation of the trust are exempt from state securities

  5  law. In addition, implementation of this program shall not

  6  begin until the commissioner has obtained, in addition to the

  7  opinion required in subsection (15), written advice of counsel

  8  that the trust and the offering of participation in the trust

  9  are not subject to federal securities laws.

10         (7)(a)  Before authorizing the withdrawal of any moneys

11  from the trust for the payment of qualified higher education

12  expenses of a designated beneficiary, the trust must be

13  advised of the qualified educational institution the

14  designated beneficiary will attend and the anticipated date of

15  enrollment. The trust shall then require information from the

16  selected institution reflecting the designated beneficiary's

17  enrollment at such institution.

18         (b)  Upon receipt of all required documentation, the

19  trust shall make distributions by check to the specified

20  institution and the designated beneficiary jointly.

21         (c)  Before authorizing withdrawals from the trust for

22  payment of off-campus room and board and other allowed

23  qualified higher education expenses, the trust shall require

24  information from the designated beneficiary reflecting the

25  expenses being submitted. If a designated beneficiary resides

26  off campus, the trust shall pay directly to the designated

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

28  tickets for an academic period as established by such

29  institution for on-campus students; provided, however, that in

30  no event may any disbursement exceed any maximum amount

31  established by the Internal Revenue Code. Funds may only be

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  1  disbursed to a designated beneficiary for room and board if

  2  the designated beneficiary is enrolled at an eligible

  3  educational institution at least half time, or such other

  4  enrollment requirement as may be imposed by the Internal

  5  Revenue Code or Internal Revenue Service regulations.

  6         (d)  Each distribution shall consist of a pro rata

  7  distribution of contributions and earnings and shall be in the

  8  manner prescribed by the commissioner, consistent with the

  9  regulations of the United States Treasury Department or

10  Internal Revenue Service.

11         (e)  All distributions made during a taxable year shall

12  be treated as one distribution.

13         (8)(a)  A depositor may withdraw funds from the trust.

14  The depositor shall be entitled to the return of the principal

15  amount of all contributions made by the depositor, plus actual

16  investment earnings or minus actual investment losses on the

17  contributions, less a penalty set forth in paragraph (c).

18         (b)  Notwithstanding paragraph (a), a penalty may not

19  be levied if a depositor requests a withdrawal of funds from

20  the trust due to any of the following circumstances:

21         1.  Death of the beneficiary.

22         2.  Permanent disability or mental incapacity of the

23  beneficiary.

24         3.  Scholarship, allowance, or payment received by the

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

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

27  payment in accordance with federal law.

28         4.  Other circumstances permitted by the Internal

29  Revenue Code or Internal Revenue Service regulations.

30         (c)  If a depositor requests a withdrawal or refund of

31  funds contributed to the trust for any cause other than one

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  1  listed in paragraph (b), there shall be imposed a penalty of

  2  15 percent of the earnings of the account and any applicable

  3  taxes, or such lower penalty as may be prescribed by the

  4  Internal Revenue Code or Internal Revenue Service regulations.

  5  Earnings shall be calculated as the total account value less

  6  the aggregate contributions.

  7         (d)  If an account of a designated beneficiary remains

  8  unused for a period of 5 consecutive years after the

  9  designated beneficiary first becomes eligible to attend an

10  eligible educational institution, the balance of the account,

11  after notice to the depositor, shall be declared unclaimed and

12  abandoned property and subject to disposition as such under

13  chapter 717. Time expended by a designated beneficiary as an

14  active duty member of any of the Armed Services of the United

15  States shall be added to this period.

16         (9)  On or before September 30 each year, the

17  commissioner shall cause to be published a report on the

18  operations of the trust in the form of an audited financial

19  statement, including the receipts, disbursements, assets,

20  investments, liabilities, and administrative costs of the

21  trust for the prior fiscal year. The first report shall be due

22  September 30, 1999. The commissioner shall submit a copy of

23  the report to the Governor, the President of the Senate, the

24  Speaker of the House of Representatives, and the minority

25  leaders of the House and Senate and shall make the report

26  available to each depositor and designated beneficiary. In

27  addition, the accounts of the trust shall be subject to annual

28  audit by the Auditor General at no cost to the trust or

29  program.

30         (10)  Deposits and contributions to the trust, the

31  property of the trust, and the earnings on the trust shall be

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  1  exempt from all taxation by the state and all political

  2  subdivisions of the state.

  3         (11)  The state, a county, a municipality, a political

  4  subdivision, the trust, or the program may, by contract or

  5  collective bargaining agreement, agree with any employee to

  6  remit payments for deposit into the trust through payroll

  7  deductions made by the appropriate office or officers of the

  8  state, state agency, county, municipality, or political

  9  subdivision. Such payments into the trust shall be treated as

10  all other deposits to the trust.

11         (12)  The state pledges to depositors, designated

12  beneficiaries, and other parties who enter into contracts with

13  the trust under this section that the state will not limit or

14  alter the rights under this section vested in the trust or

15  contracts with the trust until such obligations are fully met

16  and discharged and such contracts are fully performed on the

17  part of the trust, provided that nothing in this subsection

18  shall preclude such limitation or alteration if adequate

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

20  and designated beneficiaries pursuant to the obligations of

21  the trust and other parties who entered into such contracts

22  with the trust. The trust, on behalf of the state, may include

23  this pledge and undertaking for the state in participation

24  agreements and such other obligations or contracts.

25         (13)  Nothing in this section or in any participation

26  agreement shall constitute or be deemed to constitute an

27  agreement, pledge, promise, or guarantee of admission or

28  continued enrollment of any designated beneficiary or any

29  other person to or in any eligible educational institution in

30  the state or any other eligible educational institution. Each

31  participation agreement shall clearly state that participation

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  1  in the program and trust does not guarantee admission or

  2  continued enrollment at any eligible educational institution.

  3         (14)  Each participation agreement shall clearly state

  4  that participation in the program and the trust does not

  5  guarantee that sufficient funds will be available to cover all

  6  qualified higher education expenses for any designated

  7  beneficiary.

  8         (15)  This section shall be liberally construed in

  9  order to effectuate the purposes and intent of this section.

10  It is the intent of the Legislature that the tuition savings

11  program established in this section qualify as a qualified

12  state tuition program under s. 529 of the Internal Revenue

13  Code. The commissioner shall take any action necessary to

14  ensure that the trust complies with all applicable

15  requirements of federal and state laws, rules, and regulations

16  to the extent necessary for the trust to constitute a

17  qualified state tuition program under s. 529 of the Internal

18  Revenue Code. Implementation of the program shall not begin

19  until the commissioner has received, in addition to the advice

20  of counsel required in paragraph (6)(b), a favorable opinion

21  from counsel to the effect that the program constitutes a

22  qualified state tuition program under s. 529 of the Internal

23  Revenue Code. However, upon the effective date of this act,

24  the commissioner may expend program funds to retain legal

25  service to render the required opinions, to be recovered as

26  provided in subsection (16).

27         (16)  In order to pay for startup costs and expenses,

28  including legal fees, associated with the legal opinions

29  required in paragraph (6)(b) and subsection (15) and the cost

30  of issuing a request for proposals to privatize the

31  administration and management of the program as described in

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  1  paragraph (5)(a), if any, the commissioner may advance to the

  2  trust and program up to $75,000 during the first 12 months

  3  after the effective date of this act. Any moneys so advanced,

  4  plus interest, must be repaid to the commissioner by the trust

  5  and the program no later than 24 months after the trust has

  6  begun accepting deposits. Such costs may also be defrayed in

  7  whole or in part by fees to be assessed by the commissioner to

  8  entities responding to any competitive solicitation for the

  9  trust or program. Interest shall be computed on the average

10  monthly balance outstanding at a rate equal to the prime

11  interest rate plus 1 percent. Ongoing administrative costs

12  incurred by the commissioner in monitoring the contract or

13  contracts relating to the trust and the program shall be

14  recovered from the successful contractor or contractors, which

15  funds may come from investment earnings accruing to the trust.

16  The commissioner is not entitled to a fee from the trust;

17  however, this does not preclude the commissioner from

18  receiving a fee for services rendered to the trust pursuant to

19  a contract.

20         (17)  The trust is exempt from the deduction required

21  by s. 215.20(1).

22         (18)  Members and employees of the Office of the

23  Commissioner of Education, the State Board of Education, or

24  the Department of Education are not prohibited from

25  individually becoming depositors or designated beneficiaries

26  by virtue of their fiduciary or other responsibilities with

27  the commissioner.

28         Section 2.  If any provision of this act or the

29  application thereof to any person or circumstance is held

30  invalid, the invalidity shall not affect other provisions or

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

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  1  invalid provision or application, and to this end the

  2  provisions of this act are declared severable.

  3         Section 3.  This act shall take effect upon becoming a

  4  law.

  5

  6            *****************************************

  7                          HOUSE SUMMARY

  8
      Establishes the Florida Higher Education Savings Program.
  9    Provides intent and definitions. Provides for
      establishment and administration of the Florida Higher
10    Education Savings Trust. Provides for participation
      agreements, investment of funds in the trust, payment of
11    higher education expenses from the trust, and withdrawals
      from the trust, including certain penalties applicable
12    thereto. Requires annual reporting. Provides for
      exemption from state and local taxes. Provides a state
13    pledge. Provides applicability with respect to enrollment
      in institutions of higher education. Provides that moneys
14    in the trust are not assets for financial aid needs
      testing. Provides for liberal construction. Requires
15    certain legal opinions prior to implementation. Provides
      for startup funding. See bill for details.
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