Florida Senate - 2010 SB 2192 By Senator Peaden 2-01440-10 20102192__ 1 A bill to be entitled 2 An act relating to the Prepaid Developmental 3 Disabilities Savings Program; creating s. 393.507, 4 F.S.; providing legislative findings and intent; 5 providing definitions; creating the Prepaid 6 Developmental Disabilities Savings Program; providing 7 for administration and management of the savings 8 program by the Florida Prepaid College Board in 9 conjunction with the Stanley G. Tate Florida Prepaid 10 College Program; providing for membership on the board 11 for purposes of certain meetings; providing that the 12 savings program shall be supported by the direct 13 support organization established by the Florida 14 Prepaid College Board; providing requirements for 15 administration of the savings program; requiring a 16 prepaid contract plan to provide for advance payment 17 for eligible services for a qualified beneficiary and 18 an investment plan to provide for the investment of 19 funds by a benefactor for a qualified beneficiary; 20 providing requirements for contract pricing and 21 redemption value; providing requirements that must be 22 met prior to implementation of the savings program; 23 requiring funds for the savings program to be 24 deposited in a separate account in the Florida Prepaid 25 College Trust Fund; providing that the prepaid 26 contract fund and the investment fund shall consist of 27 certain moneys; providing requirements for the use, 28 investment, and maintenance of moneys in savings 29 program accounts; requiring comprehensive asset 30 allocation plans; requiring annual reports that 31 provide an accounting of the prepaid contract plan and 32 the investment plan; requiring annual audits; 33 providing for initial enrollment in the savings 34 program; creating the Prepaid Services for Parents of 35 Children with Developmental Disabilities Study Group; 36 requiring the study group to make recommendations 37 regarding the implementation of, and enrollment in, 38 the savings program; providing membership of the study 39 group; providing for abolishment of the study group; 40 providing severability; providing an effective date. 41 42 Be It Enacted by the Legislature of the State of Florida: 43 44 Section 1. Section 393.507, Florida Statutes, is created to 45 read: 46 393.507 Prepaid Developmental Disabilities Savings 47 Program.— 48 (1)(a) The Legislature recognizes the opportunity to 49 provide increased access to services, at the discretion of the 50 family, for those families who have children with developmental 51 disabilities. The years after a student with a developmental 52 disability ages out of the education system are critical for 53 learning and transition. The Legislature finds that the creation 54 of a savings program for families with children who have 55 developmental disabilities can offer accessibility to services, 56 regardless of income, insurance, or Medicaid eligibility. 57 (b) It is the intent of the Legislature that a prepaid 58 developmental disabilities savings program consisting of a 59 prepaid contract plan and an investment plan be established 60 through which many of the costs associated with children with 61 developmental disabilities who age out of the education system 62 may be paid or saved for in advance. It is the intent that the 63 prepaid contract plan be interchangeable with an advance payment 64 plan of the Stanley G. Tate Florida Prepaid College Program, 65 thereby providing students with developmental disabilities the 66 ability to receive the same value and contract pricing offered 67 through the prepaid college program. It is further the intent 68 that the investment plan be established as a supplement or an 69 alternative to the prepaid contract plan to allow benefactors to 70 place funds in a designated trust fund savings account from 71 which future needs of the beneficiary can be met. Finally, it is 72 the intent that a prepaid developmental disabilities savings 73 program be conducted in a manner to maximize program efficiency 74 and effectiveness. 75 (2) For the purposes of this section, the term: 76 (a) “Benefactor” means any person making a deposit, 77 payment, contribution, gift, or other expenditure into the 78 investment plan of a qualified beneficiary. 79 (b) “Board” means the Florida Prepaid College Board 80 pursuant to s. 1009.971. 81 (c) “Developmental disability” means a disability defined 82 in s. 393.063(9) or a severe, chronic disability that: 83 1. Is attributable to a mental or physical impairment or a 84 combination of those impairments. 85 2. Occurs before the individual reaches 18 years of age. 86 3. Is likely to continue indefinitely. 87 4. Results in substantial functional limitations in three 88 or more of the following areas of major life activity: self 89 care, receptive and expressive language, learning, mobility, 90 self-direction, capacity for independent living, or economic 91 self-sufficiency. 92 5. Reflects the individual’s need for a combination and 93 sequence of special, interdisciplinary, or generic services, 94 individualized supports, or other forms of assistance that are 95 of lifelong or extended duration and are individually planned 96 and coordinated. 97 6. For a child younger than 10 years of age, is likely to 98 meet the criteria in subparagraphs 1.-5. without intervention. 99 (d) “Eligible services” means: 100 1. Specific services that may include respite care, 101 provision of rehabilitation and habilitation services, assistive 102 technology, personal assistance services, counseling, support 103 for families headed by aging caregivers, vehicular and home 104 modifications, and assistance with extraordinary expenses 105 associated with the needs of individuals with developmental 106 disabilities. 107 2. Health-related services that may include medical, 108 dental, mental health, and other human and social services to 109 enhance the well-being of the individual, as well as durable and 110 consumable medical supplies. 111 3. Housing-related services that may result in individuals 112 with developmental disabilities having access to and use of 113 housing and housing supports and services in their communities, 114 including assistance related to renting, owning, or modifying an 115 apartment or home. 116 4. Education-related services such as attendance in a 117 training or educational setting, technology, and personnel 118 related services that assist in obtaining and maximizing the 119 educational experience. 120 5. Employment-related services that are necessary to assist 121 the individual in meeting essential job functions through 122 technology, personnel-related expenses, and transportation 123 expenses. 124 (e) “Internal Revenue Code” means the Internal Revenue Code 125 of 1986, as defined in s. 220.03(1), and regulations adopted 126 pursuant thereto. 127 (f) “Investment fund” means the fund within the Florida 128 Prepaid College Trust Fund into which moneys belonging to the 129 investment plan are deposited and held. 130 (g) “Investment plan” means the plan under the Prepaid 131 Developmental Disabilities Savings Program that provides the 132 opportunity for a benefactor, in a self-directed manner, to 133 deposit funds on behalf of a qualified beneficiary into a 134 nonguaranteed fund that is among the specific fund options 135 provided by the Florida Prepaid College Board. 136 (h) “Prepaid college program” means the Stanley G. Tate 137 Florida Prepaid College Program pursuant to s. 1009.98. 138 (i) “Prepaid contract fund” means the fund within the 139 Florida Prepaid College Trust Fund into which moneys belonging 140 to the prepaid contract plan are deposited and held. 141 (j) “Prepaid contract plan” means the advance payment plan 142 under the Prepaid Developmental Disabilities Savings Program 143 that provides the opportunity for a purchaser to enter into a 144 guaranteed value advance payment contract to provide for future 145 college enrollment and attendance or other eligible services for 146 a qualified beneficiary. 147 (k) “Purchaser” means a parent or grandparent who is a 148 resident of the state who makes or is obligated to make advance 149 payments for eligible services in accordance with a prepaid 150 contract plan for his or her child or grandchild or a 151 nonresident, noncustodial parent who makes or is obligated to 152 make advance payments for eligible services in accordance with a 153 prepaid contract plan for his or her child. 154 (l) “Qualified beneficiary” means a person with a 155 developmental disability who is a resident of the state and who 156 is under 22 years of age at the time a purchaser enters into an 157 advance payment contract or at the time a benefactor funds an 158 investment plan on his or her behalf. 159 (m) “Savings program” means the Prepaid Developmental 160 Disabilities Savings Program. 161 (n) “Trust fund” means the Florida Prepaid College Trust 162 Fund pursuant to s. 1009.972. 163 (3)(a) There is created the Prepaid Developmental 164 Disabilities Savings Program to be administered and managed in 165 conjunction with the Stanley G. Tate Florida Prepaid College 166 Program by the Florida Prepaid College Board. The director of 167 the Agency for Persons with Disabilities and one member 168 appointed by the Governor shall serve as members of the board 169 for the sole purpose of meetings conducted for the 170 implementation, management, and execution of the savings 171 program. 172 (b) The board shall administer the savings program 173 according to s. 1009.98, and the savings program shall be 174 supported by the direct-support organization of the prepaid 175 college program pursuant to s. 1009.983. 176 (c) The savings program shall provide a prepaid contract 177 plan through which the costs of eligible services for 178 individuals with developmental disabilities may be paid in 179 advance and an investment plan through which a benefactor may 180 deposit funds for future needs of an individual with 181 developmental disabilities. 182 (d) The savings program shall provide education and 183 training opportunities and any other eligible services for 184 individuals with developmental disabilities to advance their 185 goals and become contributing members of society. 186 (e) Advance payment contracts offered under the savings 187 program shall inform the purchaser of the potential impact on 188 eligibility for Medicaid or other state or federally funded 189 programs. 190 (4) The board shall administer the savings program to 191 promote and enhance the affordability of services for 192 individuals with developmental disabilities and to enable 193 persons to contribute funds that are combined and invested to 194 pay the subsequent expenses for a designated beneficiary. Such 195 contributions shall be combined and invested in a manner that 196 yields, at a minimum, sufficient interest to generate the 197 difference between the prepaid amount and the accrued amount at 198 the time of actual disbursement, not to exceed the redemption 199 value of the advance payment contract. The contract pricing and 200 redemption value for the prepaid contract plan shall be equal or 201 comparable to the pricing options and redemption values 202 available under the prepaid college program. Individuals with 203 developmental disabilities who attend college may use the 204 benefits of the prepaid contract plan, which will provide value 205 equal to that of a prepaid college program plan. Individuals 206 with a prepaid college program plan may convert the plan to a 207 prepaid contract plan under the savings program in the event the 208 beneficiary meets eligibility requirements for the savings 209 program. 210 (5) The board may not implement the savings program until 211 it has obtained all of the following: 212 (a) A written opinion from a qualified member of the United 213 States Patent Bar indicating that the implementation of the 214 savings program or the operation of the savings program will not 215 knowingly infringe upon any patent or copyright specifically 216 related to the financing of expenses. 217 (b) A written opinion of qualified counsel specializing in 218 federal securities law that the savings program and the offering 219 of participation in the savings program does not violate federal 220 securities law. 221 (c) A written opinion from the board’s litigation counsel 222 indicating that the implementation or operation of the savings 223 program will not adversely impact any pending litigation against 224 the board. 225 (6)(a) Funds for the savings program shall be deposited in 226 a separate account in the Florida Prepaid College Trust Fund 227 and, within that account, the moneys shall be segregated into 228 two separate funds, the prepaid contract fund and the investment 229 fund. 230 (b) The prepaid contract fund shall consist of, but not be 231 limited to, moneys acquired from governmental or private sources 232 for the prepaid contract plan, moneys remitted in accordance 233 with prepaid contract plans, or state appropriations. Dividends, 234 interest, and gains accruing to the prepaid contract fund shall 235 increase the total funds available for the prepaid contract 236 plan. If dividends, interest, and gains for the prepaid contract 237 fund exceed the amount necessary for program administration and 238 disbursements, the board may designate an additional percentage 239 of the prepaid contract fund to serve as a contingency fund. 240 (c) The investment fund shall consist of, but not be 241 limited to, moneys acquired from governmental or private sources 242 for the investment plan, moneys remitted in accordance with 243 investment plans, or state appropriations. The amounts on 244 deposit in the investment fund shall remain in the fund and 245 shall be available solely for carrying out the purposes of the 246 investment plan. 247 (d) Any balance in the prepaid contract fund or the 248 investment fund at the end of a fiscal year shall remain in the 249 respective fund and shall be available for carrying out the 250 purposes of the fund and the direct-support organization. Moneys 251 in the prepaid contract fund or the investment fund shall be 252 exempt from the investment requirements pursuant to s. 17.57. 253 All funds deposited in the prepaid contract fund may be invested 254 pursuant to s. 215.47. Any funds of the direct-support 255 organization shall be exempt from the provisions of this 256 section. 257 (e) The assets of the prepaid contract fund and the 258 investment fund shall be maintained, invested, and expended 259 solely for the purposes of the prepaid contract plan and the 260 investment plan, respectively, and shall not be loaned, 261 transferred, or otherwise used by the state for any purpose 262 other than the purposes of this section. 263 (f) All services purchased with funds from the prepaid 264 contract fund or the investment fund shall be purchased from 265 providers who have been certified, licensed, or otherwise 266 approved by the state. 267 (7) A benefactor retains ownership of all amounts on 268 deposit in his or her account with the savings program. Earnings 269 derived from investment of the contributions shall be considered 270 to be held in trust in the same manner as contributions, except 271 as applied for purposes of the designated beneficiary and for 272 purposes of maintaining and administering the savings program. 273 (8) All amounts attributable to penalties imposed by the 274 board for, but not limited to, delinquent payments or entering 275 into a contract under a fraudulent basis shall be used for 276 purposes of the savings program or as required by the Internal 277 Revenue Code, and amounts received other than contributions 278 shall be property of the savings program. Proceeds from 279 penalties shall remain with the savings program and may be used 280 for any costs or purposes of the savings program or used as 281 required by the Internal Revenue Code. 282 (9) The assets of the savings program shall be continuously 283 invested and reinvested in a manner consistent with the purposes 284 of the savings program, expended on expenses incurred by the 285 operation and management of the savings program, or refunded to 286 the purchaser under the conditions provided in the contract. The 287 board is not required to invest directly in obligations of the 288 state or any political subdivision of the state or in any 289 investment or other fund administered by the state. 290 (10) The board shall establish separate comprehensive asset 291 allocation plans for the prepaid contract fund and the 292 investment fund, each subject to the approval of the State Board 293 of Administration. Each comprehensive asset allocation plan 294 shall specify the investment policies to be utilized by the 295 board in its administration of each respective fund. The board 296 may place assets of each fund in investment products pursuant to 297 the comprehensive asset allocation plan for each respective fund 298 and in such proportions as may be designated or approved under 299 the savings program. Such products shall be underwritten and 300 offered in compliance with the applicable federal and state 301 laws, regulations, and rules by persons authorized by applicable 302 federal and state authorities. A purchaser may not direct the 303 investment of his or her contribution to the prepaid contract 304 plan. A benefactor or designated beneficiary may not direct the 305 investment of any contributions to the investment plan other 306 than to the specific fund options provided by the board, if any. 307 Board members and employees of the board are not prohibited from 308 participating in the savings program by virtue of their 309 fiduciary responsibilities as members of the board or official 310 duties as employees of the board. 311 (11) On or before March 31 of each year, the board shall 312 prepare or cause to be prepared separate reports setting forth 313 in appropriate detail an accounting of the prepaid contract plan 314 and the investment plan that includes a description of the 315 financial condition of each respective plan at the close of the 316 fiscal year. The board shall submit copies of the reports to the 317 Governor, the President of the Senate, the Speaker of the House 318 of Representatives, and the minority leaders of the Senate and 319 the House of Representatives and shall make the report for the 320 prepaid contract plan available to each purchaser and designated 321 beneficiary and the report for the investment plan available to 322 each benefactor and designated beneficiary. The accounts of the 323 funds for the prepaid contract plan and the investment plan 324 shall be subject to annual audits by the Auditor General. 325 (12) Nothing in the savings program shall be construed as a 326 promise or guarantee that a qualified beneficiary or a 327 designated beneficiary will become Medicaid eligible, receive 328 permanent services, be enrolled in the Medicaid waiver program, 329 or receive any other state or federal assistance. 330 (13) Initial enrollment in the savings program shall begin 331 no later than July 1, 2011. 332 Section 2. (1) The Prepaid Services for Parents of Children 333 with Developmental Disabilities Study Group is created to make 334 recommendations to the Florida Prepaid College Board, pursuant 335 to s. 1009.971, Florida Statutes, regarding the implementation 336 of, and enrollment in, the Prepaid Developmental Disabilities 337 Savings Program created under s. 393.507, Florida Statutes. 338 (2) The study group shall consist of the following: 339 (a) A member of the House of Representatives appointed by 340 the Speaker of the House of Representatives. 341 (b) A member of the Senate appointed by the President of 342 the Senate. 343 (c) The director of the Agency for Persons with 344 Disabilities or his or her designee. 345 (d) The director of the Division of Vocational 346 Rehabilitation or his or her designee. 347 (e) The executive director of the State Board of 348 Administration or his or her designee. 349 (f) The Commissioner of Education or his or her designee. 350 (g) The executive director of The Arc of Florida or his or 351 her designee. 352 (h) An Arc of Florida family board member appointed by the 353 executive director of The Arc of Florida. 354 (i) The chair of the Family Care Council Florida or his or 355 her designee. 356 (j) A parent representative from the Family Care Council 357 Florida appointed by the chair of the Family Care Council 358 Florida. 359 (3)(a) The Agency for Persons with Disabilities shall 360 provide administrative support to the study group. 361 (b) Members of the study group shall serve without 362 compensation but are entitled to reimbursement for per diem and 363 travel expenses as provided in s. 112.061, Florida Statutes. 364 (4) The study group shall continue until enrollment in the 365 Prepaid Developmental Disabilities Savings Program has 366 commenced, at which time the study group is abolished. 367 Section 3. If any provision of this act or the application 368 thereof to any person or circumstance is held invalid, the 369 invalidity shall not affect other provisions or applications of 370 the act which can be given effect without the invalid provision 371 or application, and to this end the provisions of this act are 372 declared severable. 373 Section 4. This act shall take effect July 1, 2010.