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.