Florida Senate - 2013                                     SB 472
       
       
       
       By Senator Bean
       
       
       
       
       4-00518-13                                             2013472__
    1                        A bill to be entitled                      
    2         An act relating to developmental disabilities;
    3         establishing the Developmental Disabilities Savings
    4         Program to allow for the advance payment of services
    5         for children who have developmental disabilities and
    6         who will be ineligible for certain services due to
    7         age; providing legislative intent; defining terms;
    8         requiring the program to provide certain information;
    9         providing that the program may not be implemented
   10         until certain legal opinions are obtained;
   11         establishing the Developmental Disabilities Savings
   12         Program Board to administer the savings program;
   13         providing for board membership; specifying the powers,
   14         duties, and goals of the board; authorizing the board
   15         to adopt rules; providing a contingent effective date.
   16  
   17  Be It Enacted by the Legislature of the State of Florida:
   18  
   19         Section 1. Developmental Disabilities Savings Program.—
   20         (1) The Legislature recognizes that there is a need to
   21  provide families who have children with developmental
   22  disabilities who will become ineligible for services due to age
   23  with sufficient access to services for those children. The
   24  continued provision of educational, health, housing, employment,
   25  and other support services for children with developmental
   26  disabilities is critical. The Legislature finds that the
   27  creation of a savings and investment program for families with
   28  such children can offer continued accessibility to services,
   29  regardless of income, insurance, or Medicaid eligibility. It is,
   30  therefore, the intent of the Legislature that the Developmental
   31  Disabilities Savings Program be established through which many
   32  of the later costs associated with services for these children
   33  may be paid or saved for in advance. Such savings and investment
   34  program must be conducted in a manner that maximizes program
   35  efficiency and effectiveness.
   36         (2) As used in this section, the term:
   37         (a) “Advance payment contract” means the contract under the
   38  savings program which allows a purchaser or benefactor to make
   39  payments into an investment plan that will provide funds that
   40  may be used to pay for eligible services for a qualified
   41  beneficiary.
   42         (b) “Benefactor” means any person making a deposit,
   43  payment, contribution, gift, or other expenditure into the
   44  investment plan for a qualified beneficiary, and may include a
   45  noncustodial parent who is obligated to make payments into the
   46  plan for his or her child.
   47         (c) “Developmental disability” has the same meaning as
   48  provided in s. 393.063, Florida Statutes, or means any severe,
   49  chronic disability that:
   50         1. Is attributable to a mental or physical impairment or a
   51  combination of those impairments.
   52         2. Occurs before the individual attains 18 years of age.
   53         3. Is likely to continue indefinitely.
   54         4. Results in substantial functional limitations in three
   55  or more of the following areas of major life activity: self
   56  care, receptive and expressive language, learning, mobility,
   57  self-direction, capacity for independent living, or economic
   58  self-sufficiency.
   59         5. Reflects the individual’s need for a combination and
   60  sequence of special, interdisciplinary, or generic services,
   61  individualized supports, or other forms of assistance that are
   62  of lifelong or extended duration and are individually planned
   63  and coordinated.
   64         6. For a child younger than 10 years of age, is likely to
   65  meet the criteria in subparagraphs 1.-5. without intervention.
   66         (d) “Eligible services” means:
   67         1. Specific services that may include respite care,
   68  provision of rehabilitation and habilitation services,
   69  transportation, assistive technology, personal assistance
   70  services, counseling, support for families headed by aging
   71  caregivers, vehicular and home modifications, and assistance to
   72  cover extraordinary expenses associated with the needs of
   73  individuals with developmental disabilities.
   74         2. Health-related services that may include medical,
   75  dental, mental health, and other human and social services to
   76  enhance the well-being of the individual, as well as durable and
   77  consumable medical supplies.
   78         3. Housing-related services that may result in individuals
   79  with developmental disabilities having access to and use of
   80  housing and housing supports and services in their communities,
   81  including assistance related to modifying an apartment or home.
   82         4. Education-related services to facilitate attendance in a
   83  training or educational setting, such as technology and
   84  personnel-related services that assist in obtaining and
   85  maximizing the educational experience.
   86         5. Employment-related services that are necessary to assist
   87  the individual in meeting essential job functions through
   88  technology, personnel-related expenses, and transportation
   89  expenses.
   90         (e) “Purchaser” means a resident of this state who is the
   91  parent or grandparent of a qualified beneficiary and who enters
   92  into an advance payment contract.
   93         (f) “Qualified beneficiary” means an individual with a
   94  developmental disability who is a resident of the state and who
   95  is younger than 22 years of age at the time a purchaser enters
   96  into an advance payment contract on his or her behalf.
   97         (g) “Savings program” means the Developmental Disabilities
   98  Savings Program.
   99         (3) There is created the Developmental Disabilities Savings
  100  Program.
  101         (a) The savings program shall offer an investment plan
  102  through which eligible services for a qualified beneficiary may
  103  be paid for in advance.
  104         (b) The savings program shall provide information and
  105  training concerning the program and its benefits for a qualified
  106  beneficiary to advance his or her goals and become a
  107  contributing member of society.
  108         (c) The savings program must inform the purchaser of the
  109  potential impact of plan participation on eligibility for
  110  Medicaid or other state or federally funded programs.
  111         (4) The savings program may not be implemented until the
  112  board created under subsection (6) which is administering the
  113  savings program has obtained the following:
  114         (a) A written opinion of qualified counsel specializing in
  115  federal securities law that the savings program and the offering
  116  of participation in the investment plan does not violate federal
  117  securities law; and
  118         (b) A private letter ruling from the federal Internal
  119  Revenue Service indicating that under the savings program taxes
  120  on any payments made, moneys deposited, investments made, and
  121  resulting earnings may be deferred under the Internal Revenue
  122  Code. If the Internal Revenue Service declines to rule on the
  123  request for a private letter ruling, the program may rely on
  124  legal opinion rendered by a qualified attorney specializing in
  125  tax law.
  126         (5) The savings program is not a promise or guarantee that
  127  a qualified beneficiary or a designated beneficiary will become
  128  eligible for Medicaid, receive permanent services, be enrolled
  129  in the Medicaid waiver program, or receive any other state or
  130  federal assistance.
  131         (6) The savings program shall be administered by the
  132  Developmental Disabilities Savings Program Board as a body
  133  corporate with all the powers of a body corporate for the
  134  purposes delineated in this section.
  135         (a) The board shall consist of seven members, including:
  136         1. The director of the Agency for Persons with
  137  Disabilities.
  138         2. The director of the Division of Vocational
  139  Rehabilitation of the Department of Education.
  140         3. The president of The Arc of Florida.
  141         4. The chair of the Family Care Council of Florida, or his
  142  or her designee.
  143         5. Three members, appointed by the Governor for 3-year
  144  terms, who possess knowledge, skill, and experience in the areas
  145  of accounting, actuary, risk management, or investment
  146  management. Any person appointed to fill a vacancy for such
  147  members shall serve only for the unexpired term and until a
  148  successor qualifies, but is eligible for reappointment.
  149         (b) The board shall annually elect a chair and vice chair
  150  from the board members, and shall designate a secretary
  151  treasurer who need not be a member of the board. The secretary
  152  treasurer shall keep a record of the proceedings of the board
  153  and shall be the custodian of all printed material filed with or
  154  by the board and its official seal.
  155         1. The board shall, at a minimum, meet on a quarterly basis
  156  at the call of the chair.
  157         2. Notwithstanding the existence of vacancies on the board,
  158  a majority of the members constitutes a quorum. The board shall
  159  take no official action in the absence of a quorum.
  160         3. Members of the board shall serve without compensation,
  161  and each member shall file a full and public disclosure of his
  162  or her financial interests pursuant to s. 8, Art. II of the
  163  State Constitution and corresponding statute.
  164         (c) The board shall have the powers and duties necessary or
  165  proper to carry out the following provisions, including, but not
  166  limited to:
  167         1. Appointing an executive director, whose compensation
  168  shall be provided from revenue generated by the program, to
  169  serve as the chief administrative and operational officer of the
  170  program and to perform other duties assigned to him or her by
  171  the board.
  172         2. Delegating responsibility for administration of the
  173  savings program to persons the board determines are qualified.
  174         3. Adopting an official seal and rules.
  175         4. Making and executing contracts and other necessary
  176  instruments.
  177         5. Establishing agreements or other transactions with
  178  federal, state, and local agencies.
  179         6. Forming strategic alliances with public and private
  180  entities to provide benefits to the savings program.
  181         7. Appearing on its own behalf before boards, commissions,
  182  or other governmental agencies.
  183         8. Procuring and contracting for goods and services,
  184  employing personnel, and engaging the services of private
  185  consultants, actuaries, managers, legal counsel, and auditors in
  186  a manner determined to be necessary and appropriate by the
  187  board.
  188         9. Adopting procedures to govern contract dispute
  189  proceedings between the board and its vendors.
  190         10. Soliciting proposals and contracting for the marketing
  191  of the savings program. Any materials produced for the purpose
  192  of marketing must be submitted to the board for review.
  193  Materials may not be made available to the public before the
  194  materials are approved by the board. The state and the board are
  195  not liable for misrepresentation of the savings program by a
  196  marketing agent.
  197         11. Investing funds not required for immediate
  198  disbursement.
  199         12. Holding, buying, and selling any instruments,
  200  obligations, securities, and property determined appropriate by
  201  the board.
  202         13. Administering the savings program in a manner that is
  203  sufficiently actuarially sound to defray the obligations of the
  204  savings program. The board shall annually evaluate the actuarial
  205  soundness of the investment plan.
  206         14. Soliciting and accepting gifts, grants, loans, and
  207  other aids from any source or participating in any other way in
  208  any government program to carry out the purposes of the savings
  209  program.
  210         15. Requiring and collecting administrative fees and
  211  charges in connection with any transaction and imposing
  212  reasonable penalties, including default, for delinquent payments
  213  or for entering into an advance payment contract on a fraudulent
  214  basis.
  215         16. Suing and being sued.
  216         17. Endorsing insurance coverage written exclusively for
  217  the purpose of protecting the investment plan, and the
  218  purchasers, benefactors, and beneficiaries thereof.
  219         18. Procuring insurance against any loss in connection with
  220  the property, assets, and activities of the savings program or
  221  the board.
  222         19. Providing for the receipt of contributions in lump sums
  223  or installment payments.
  224         20. Imposing reasonable time limits on use of the benefits
  225  provided by the savings program. However, such limitations must
  226  be specified in the contract.
  227         21. Delineating the terms and conditions under which
  228  payments may be withdrawn from the investment plan and impose
  229  reasonable fees and charges for such withdrawal. Such terms and
  230  conditions must be specified within the advance payment
  231  contract.
  232         22. Establishing other policies, procedures, and criteria
  233  to implement and administer the savings program.
  234         (d) The board shall solicit proposals and contract for:
  235         1. Investment managers to provide investment portfolios for
  236  the savings program. Investment managers are limited to
  237  authorized insurers as defined in s. 624.09, Florida Statutes,
  238  banks as defined in s. 658.12, Florida Statutes, associations as
  239  defined in s. 665.012, Florida Statutes, authorized Securities
  240  and Exchange Commission investment advisers, and investment
  241  companies as defined in the Investment Company Act of 1940. All
  242  investment managers shall have their principal place of business
  243  and corporate charter located and registered in the United
  244  States. In addition, each investment manager must agree to meet
  245  the obligations of the board to qualified beneficiaries if
  246  moneys in the fund fail to offset the obligations of the board
  247  as a result of imprudent investing by such manager. Each
  248  authorized insurer shall evidence superior performance overall
  249  on an acceptable level of surety in meeting its obligations to
  250  its policyholders and other contractual obligations. Only
  251  qualified public depositories approved by the Chief Financial
  252  Officer are eligible for board consideration. Each investment
  253  company shall provide investment plans as specified within the
  254  request for proposals.
  255         2. Investment consultants to review the performance of the
  256  board’s investment managers and advise the board on investment
  257  management and performance and investment policy, including the
  258  contents of investment plans.
  259         3. Trustee services firms to provide trustee and related
  260  services to the board. The trustee services firm must agree to
  261  meet the obligations of the board to qualified beneficiaries if
  262  moneys in the plan fail to offset the obligations of the board
  263  as a result of imprudent selection or supervision of investment
  264  plans by such firm.
  265         4. The services of records administrators.
  266         (e) The goals of the board in procuring investment services
  267  shall be to provide all purchasers and benefactors with the most
  268  secure, well-diversified, and beneficially administered savings
  269  program possible, to allow all qualified firms interested in
  270  providing such services equal consideration, and to provide such
  271  services to the state at no cost and to the purchasers and
  272  benefactors at the lowest cost possible. Evaluations of
  273  proposals submitted pursuant to paragraph (d) must consider,
  274  without limitation, fees and other costs that are charged to
  275  purchasers or benefactors that affect account values, or that
  276  impact the operational costs of the savings program; past
  277  experience and past performance in providing the required
  278  services; financial history and current financial strength and
  279  capital adequacy to provide the required services; and
  280  capabilities and experience of proposed personnel who will
  281  provide the required services.
  282         (f) The board may adopt rules necessary for the savings
  283  program to qualify for or retain its status as a qualified tax
  284  deferred program or other similar status of the program,
  285  purchasers, and qualified beneficiaries under the Internal
  286  Revenue Code. The board shall inform participants in the savings
  287  program of changes to the tax or securities status of the
  288  investment plan.
  289         Section 2. This act shall take effect July 1, 2013, or upon
  290  the date that the Governor, by executive order filed with the
  291  Secretary of State, certifies that the United States Congress
  292  has passed the federal “Achieving a Better Life Experience Act
  293  of 2011” or “ABLE Act of 2011,” S.1872/H.R.3423, or similar
  294  legislation, whichever occurs later, if such legislation becomes
  295  law before October 5, 2015.