Enrolled HB 188: Establishing a program for financial accounts for individuals with disabilities; exempting the procurement of contracts for the program from the State Procurement Code; exempting certain information on participants in the program from being subject to inspection as a public record; providing that an account under the program for an individual with a disability is not a security; allowing a state to file a claim against an individual's financial account under the program to recover Medicaid payments after the individual's death; and providing for an effective date.
00Enrolled HB 188 01 Establishing a program for financial accounts for individuals with disabilities; exempting the 02 procurement of contracts for the program from the State Procurement Code; exempting 03 certain information on participants in the program from being subject to inspection as a public 04 record; providing that an account under the program for an individual with a disability is not a 05 security; allowing a state to file a claim against an individual's financial account under the 06 program to recover Medicaid payments after the individual's death; and providing for an 07 effective date. 08 _______________ 09 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 10 to read: 11 SHORT TITLE. AS 06.65, enacted by sec. 2 of this Act, may be cited as the Alaska 12 ABLE Savings Program Act. 13 * Sec. 2. AS 06 is amended by adding a new chapter to read:
01 Chapter 65. Alaska Savings Program for Eligible Individuals. 02 Sec. 06.65.010. Program authorized. The Alaska savings program for eligible 03 individuals is created in the department. The department shall implement and 04 administer the program under this chapter and as required by the federal authorizing 05 law. 06 Sec. 06.65.020. General department duties. To implement and administer the 07 program, the department shall, in addition to the other powers and duties provided to 08 the department under this chapter, 09 (1) develop, set, and approve the terms and conditions of the program, 10 consistent with this chapter and the federal authorizing law, including limiting the 11 nature and amount of contributions that may be made to a program account; 12 (2) supervise the decisions about the investment of contributions to a 13 program account; 14 (3) seek required federal, state, and other regulatory agency rulings and 15 exemptions; 16 (4) arrange for the timely filing of required regulatory notices, 17 disclosure documents, and reports; 18 (5) arrange for the program to be audited annually; and 19 (6) take other action that is not specifically identified in this section but 20 that is necessary to 21 (A) obtain and maintain the tax benefits allowed under the 22 federal authorizing law; and 23 (B) maintain favorable treatment for designated beneficiaries 24 under state and federal programs that use a means test for eligibility. 25 Sec. 06.65.030. Modification of program. Consistent with this chapter and 26 the federal authorizing law, the department may modify the terms and conditions of 27 the program as the department considers necessary or desirable for the effective and 28 efficient operation of the program. 29 Sec. 06.65.040. Additional department powers. The department may 30 (1) set fees the department considers necessary or desirable for 31 program transactions and services; and
01 (2) develop marketing plans and materials to promote the benefits of 02 the program that are available to contributors under the program and to beneficiaries 03 under the program. 04 Sec. 06.65.050. Contracting authority; procurement exemption. (a) The 05 department may contract with a person to advise and assist in the implementation and 06 operation of the program. 07 (b) The department may contract with a person to provide services for the 08 program. 09 (c) The department may enter into a contract with other states to obtain or 10 provide the services for implementing the program. The contract may include 11 cooperative procurement by the states of a person to provide services for the program, 12 including investment and record-keeping services. 13 (d) Notwithstanding the other provisions of this chapter, the department may 14 enter into a contract with another state to allow the residents of 15 (1) this state to participate in a program established by another state 16 under the federal authorizing law, instead of establishing the program in this state; 17 (2) that contracting state to participate in the program in this state. 18 (e) The procurement of contracts for the program, including procurement of 19 services under a contract with other states, is exempt from AS 36.30 (State 20 Procurement Code). 21 Sec. 06.65.060. Investment oversight. The department shall 22 (1) oversee and approve the selection of investment managers and 23 advisors for the program; 24 (2) oversee all aspects of the program's investments and investment 25 performance and decisions regarding the investment of program assets; and 26 (3) oversee all investment disclosure documents and regulatory filings 27 related to program investments. 28 Sec. 06.65.070. Financial contractor obligations. In addition to any other 29 obligations imposed by the contract with the department, if the department enters into 30 a contract with a person to provide program accounts, the financial contractor shall 31 (1) provide program accounts that comply with the federal authorizing
01 law; 02 (2) take the action necessary to keep the program in compliance with 03 the requirements of this chapter and to manage the program accounts in compliance 04 with the federal authorizing law; 05 (3) keep adequate records of each program account and keep each 06 program account segregated from other program accounts; 07 (4) as requested by the department, compile the information contained 08 in statements required to be prepared under AS 06.65.210 and provide the statements 09 and the compiled material to the department; 10 (5) provide the department with access to the books and records of the 11 financial contractor to the extent needed to determine compliance with the contract, 12 this chapter, and the federal authorizing law; 13 (6) hold program accounts for the benefit of the program account 14 owner; 15 (7) be audited, at least annually, by a firm of certified public 16 accountants acceptable to the department and provide the results of the audits to the 17 department; 18 (8) upon request of the department, provide the department with copies 19 of all filings and reports related to the program made by the financial contractor during 20 the contract or while the financial contractor holds program accounts; 21 (9) upon request of the department, make available to the department 22 for review the results of periodic examinations of the financial contractor by a state or 23 federal banking, insurance, or securities agency, except to the extent that the report is 24 confidential under state or federal law; and 25 (10) ensure that the descriptions of the program in the media that the 26 financial contractor uses to promote the program are consistent with a marketing plan 27 developed for the program. 28 Sec. 06.65.080. Additional audits. In addition to the annual audit required by 29 AS 06.65.020(5), the department may require a financial contractor to have an audit 30 conducted of the financial contractor's operations and financial position when the 31 department is concerned about the financial position, the record-keeping practices, or
01 the status of the program accounts of the financial contractor. 02 Sec. 06.65.090. Contract termination; nonrenewal. The department may 03 terminate or fail to renew a financial contract. If the department terminates or does not 04 renew a contract with a financial contractor, the department shall take custody of the 05 program accounts held by the financial contractor and transfer the program accounts to 06 another financial contractor as soon as possible and into program accounts that are as 07 similar as possible to the types of program accounts being transferred. 08 Sec. 06.65.100. Eligible individuals. To be eligible for a program account, 09 when an individual or the individual's representative establishes the program account 10 or makes a distribution to another program account under AS 06.65.200, the individual 11 shall be an individual 12 (1) who is entitled to benefits based on blindness or disability under 42 13 U.S.C. 401 - 434 or 42 U.S.C. 1381 - 1383f, and the blindness or disability occurred 14 before the date on which the individual reached 26 years of age; or 15 (2) for whom a disability certification that satisfies the secretary and 16 the federal authorizing law is filed with the secretary for the calendar year in which the 17 eligible individual or the eligible individual's representative opens the program 18 account. 19 Sec. 06.65.110. Representative of eligible individual. (a) A person may act as 20 the representative of an eligible individual under this chapter if the eligible individual 21 is a minor or lacks decision-making capacity and if the person is 22 (1) a parent, guardian, or conservator of the eligible individual; in this 23 paragraph, 24 (A) "conservator" has the meaning given in AS 13.06.050; 25 (B) "guardian" has the meaning given in AS 13.06.050; 26 (C) "parent" includes a stepparent; or 27 (2) a trustee of the property of the eligible individual. 28 (b) The representative of an eligible individual may establish a program 29 account for the eligible individual, and the eligible individual is the designated 30 beneficiary of the program account. The representative shall manage the program 31 account for the benefit of the designated beneficiary.
01 (c) In this section, "decision-making capacity" means the ability to understand 02 and appreciate the nature and consequences of a decision and the ability to reach and 03 communicate an informed decision. 04 Sec. 06.65.120. Program account ownership. (a) The owner of a program 05 account is the designated beneficiary of the program account. 06 (b) If a representative of an eligible individual establishes a program account 07 for an eligible individual, the representative is not an owner of the program account 08 and does not have or acquire an interest in the assets of the program account. 09 Sec. 06.65.130. Number of program accounts. An eligible individual may 10 not be the designated beneficiary on more than one program account. 11 Sec. 06.65.140. Program account application. The application for a program 12 account must be in the form established by the department and contain 13 (1) the name, address, and social security number of the program 14 account owner and, if applicable, the representative who opens the program account 15 for the eligible individual; and 16 (2) additional information that the department and the secretary 17 determine is necessary. 18 Sec. 06.65.150. Program account establishment fee. The financial contractor 19 may charge an eligible individual a nonrefundable fee for establishing a program 20 account. The department shall establish the amount of the fee by contract with the 21 financial contractor or by regulation. 22 Sec. 06.65.160. Program account contributions. (a) As provided by the 23 federal authorizing law, a person may make a contribution to a program account for 24 the designated beneficiary. 25 (b) A person may not make a contribution to open or add to a program account 26 unless the person makes the contribution by using a method of payment acceptable to 27 the department. 28 (c) Any person may make a contribution to a program account, but the amount 29 that the person may contribute is subject to the limits set by the federal authorizing law 30 or the department. 31 (d) The department or the financial contractor shall reject or withdraw from a
01 program account 02 (1) that part of a contribution that exceeds the limit established under 03 (c) of this section; or 04 (2) the total amount of a contribution, if the department or the financial 05 contractor determines that the 06 (A) value of the program account without the contribution is 07 equal to or greater than the maximum limit established by the federal 08 authorizing statute for the program account; or 09 (B) designated beneficiary is not an eligible individual during 10 the calendar year in which the contribution is made. 11 (e) If a person makes a distribution from a program account during a calendar 12 year, the financial contractor shall report the distribution to the federal Internal 13 Revenue Service and to the account owner or the representative of the account owner. 14 (f) The report under (e) of this section must include the distribution 15 information required by state and federal law. 16 Sec. 06.65.170. Limited investment direction. A designated beneficiary or 17 the designated beneficiary's representative may not, directly or indirectly, direct the 18 investment of a program account, including the earnings on the program account, 19 more than twice in one calendar year. 20 Sec. 06.65.180. Change of designated beneficiary. A designated beneficiary 21 or the designated beneficiary's representative may change the designated beneficiary 22 of a program account to an eligible individual who is a member of the family of the 23 previous designated beneficiary. 24 Sec. 06.65.190. Distributions for qualified expenses. Except as allowed 25 under AS 06.65.200, a designated beneficiary or the representative of the designated 26 beneficiary may not make a withdrawal or other distribution from a program account 27 unless the withdrawal or other distribution is used to pay for the qualified expenses of 28 the designated beneficiary. 29 Sec. 06.65.200. Rollover distribution. (a) Subject to the restrictions in the 30 federal authorizing law for rollover distributions, a designated beneficiary or the 31 designated beneficiary's representative may make a distribution of the money in a
01 program account to another program account if the designated beneficiary of the 02 program account to which the distribution is being made is 03 (1) the same eligible individual; or 04 (2) an eligible individual who is a member of the family of the 05 designated beneficiary from whom the distribution is made. 06 (b) To qualify as a distribution allowed under (a) of this section, the 07 designated beneficiary or the designated beneficiary's representative shall make the 08 distribution to the other program account before the 60th day after the designated 09 beneficiary or the designated beneficiary's representative makes the distribution from 10 the program account. 11 Sec. 06.65.210. Statements. (a) A financial contractor shall provide program 12 account statements to the designated beneficiary or the designated beneficiary's 13 representative of each program account established with the financial contractor at 14 least four times each year and at the times the department establishes. 15 (b) A financial contractor shall provide the department with the reports and 16 information that the department requests that are related to the program account 17 statements. 18 Sec. 06.65.220. Preparation and filing. In addition to the other reporting 19 requirements of this chapter, a financial contractor shall prepare and file the 20 statements, program account information, and other information as required by state 21 and federal law and state and federal agencies. 22 Sec. 06.65.230. Separate accounting. A financial contractor shall provide 23 separate accounting for each program account established with the financial 24 contractor. 25 Sec. 06.65.240. Annual fee. A financial contractor may impose an annual fee 26 as may be established by the department on the program account owner for the 27 maintenance of a program account. 28 Sec. 06.65.250. Use as security. A person may not use a program account or 29 an interest in a program account as security for a loan. If a person pledges a program 30 account or an interest in a program account as security for a loan, the pledge is void. 31 Sec. 06.65.260. No state obligation. (a) This chapter may not be construed to
01 create an obligation of the state, the department, or an agency or instrumentality of the 02 state to guarantee for the benefit of a designated beneficiary 03 (1) the return of the principal deposited in the program account; 04 (2) a rate of interest or other return on the principal in a program 05 account; or 06 (3) the payment of interest or other return on the principal in a program 07 account. 08 (b) Every contract, application, and other document that may be used in 09 connection with opening a program account must clearly state that the state does not 10 insure a program account or guarantee the items described in (a) of this section. 11 Sec. 06.65.270. Confidentiality. The department, the Department of Health 12 and Social Services, and another state agency that receives information under 13 AS 06.65.280 shall maintain the confidentiality of the information they receive or 14 exchange under this chapter about eligible individuals, designated beneficiaries, and 15 program accounts as required by state and federal law. 16 Sec. 06.65.280. Exchange of information. The department may exchange 17 information with the Department of Health and Social Services and other state 18 agencies to determine whether an individual is an eligible individual. 19 Sec. 06.65.290. Treatment under means test programs. (a) Notwithstanding 20 a contrary provision of law, a state agency may not consider a program account 21 amount in this or another state when determining the eligibility of the designated 22 beneficiary of the program account to receive state assistance or state benefits or when 23 determining the amount of state assistance or state benefits to be received by the 24 designated beneficiary of the program account. 25 (b) In this section, "program account amount" means a contribution to a 26 program account, earnings on the contribution, or a distribution for a qualified 27 expense. 28 Sec. 06.65.300. Deposit from permanent fund dividend. A person who is 29 eligible under AS 43.23 to receive a permanent fund dividend may make a deposit into 30 the program account of a designated beneficiary from and up to the amount of the 31 person's permanent fund dividend.
01 Sec. 06.65.310. Program expense fund. (a) The program expense fund is 02 established as a separate fund of the state in the general fund. 03 (b) The program expense fund consists of money appropriated to the fund to 04 pay the expenses of the program. 05 (c) The department shall pay the expenses incurred by the department to 06 implement and administer the program from the program expense fund. 07 (d) The department shall manage the fund. 08 (e) Except as provided otherwise by the appropriation for the money, the 09 money remaining in the program expense fund at the end of a fiscal year does not 10 lapse and remains available for expenditure under this section in successive fiscal 11 years. 12 Sec. 06.65.320. Medicaid claims. This state or another state may file a claim 13 against the amount remaining in the program account of a deceased designated 14 beneficiary to recover medical assistance payments if the payments were made for the 15 designated beneficiary, were made under that state's Medicaid program authorized by 16 42 U.S.C. 1396 - 1396p (Title XIX, Social Security Act), and were made after the 17 program account of the designated beneficiary was established. The application of this 18 section is subject to the requirements of 26 U.S.C. 529A(f) (Internal Revenue Code). 19 Sec. 06.65.330. Governing law. If a provision of this chapter conflicts with 20 the requirements of the federal authorizing law for the program, the federal 21 authorizing law governs to the extent of the conflict. 22 Sec. 06.65.340. Regulations. The department may adopt regulations under 23 AS 44.62 (Administrative Procedure Act) to implement this chapter. 24 Sec. 06.65.350. Annual report. The department shall evaluate the program 25 each year. The department shall submit an annual report containing the evaluation to 26 the senate secretary and chief clerk of the house of representatives on or before the 27 first day of each regular session of the legislature and shall notify the legislature that 28 the report is available. 29 Sec. 06.65.390. Definitions. In this chapter, 30 (1) "department" means the Department of Revenue; 31 (2) "designated beneficiary" means the eligible individual for whom a
01 program account for qualified expenses is established under this chapter; 02 (3) "eligible individual" means an individual who is eligible under 03 AS 06.65.100; 04 (4) "federal authorizing law" means 26 U.S.C. 529A (Internal Revenue 05 Code) and the regulations issued under that statute; 06 (5) "financial contractor" means a person that enters into a contract 07 with the department under this chapter to provide program accounts; 08 (6) "member of the family" has the meaning given in the federal 09 authorizing statute; 10 (7) "program" means the Alaska savings program for eligible 11 individuals established under AS 06.65.010; 12 (8) "program account" means a savings account used by the program 13 to meet the qualified disability expenses of the designated beneficiary of the account; 14 (9) "program account owner" means the designated beneficiary of a 15 program account; 16 (10) "qualified expense" means a qualified disability expense as 17 defined by the federal authorizing law; 18 (11) "representative" means a person who is a representative of an 19 eligible individual under AS 06.65.110(a); 20 (12) "savings account" means a financial account; 21 (13) "secretary" means the United States Secretary of the Treasury. 22 * Sec. 3. AS 36.30.850(b) is amended by adding a new paragraph to read: 23 (47) a contract under AS 06.65. 24 * Sec. 4. AS 40.25.120(a) is amended to read: 25 (a) Every person has a right to inspect a public record in the state, including 26 public records in recorders' offices, except 27 (1) records of vital statistics and adoption proceedings, which shall be 28 treated in the manner required by AS 18.50; 29 (2) records pertaining to juveniles unless disclosure is authorized by 30 law; 31 (3) medical and related public health records;
01 (4) records required to be kept confidential by a federal law or 02 regulation or by state law; 03 (5) to the extent the records are required to be kept confidential under 04 20 U.S.C. 1232g and the regulations adopted under 20 U.S.C. 1232g in order to secure 05 or retain federal assistance; 06 (6) records or information compiled for law enforcement purposes, but 07 only to the extent that the production of the law enforcement records or information 08 (A) could reasonably be expected to interfere with enforcement 09 proceedings; 10 (B) would deprive a person of a right to a fair trial or an 11 impartial adjudication; 12 (C) could reasonably be expected to constitute an unwarranted 13 invasion of the personal privacy of a suspect, defendant, victim, or witness; 14 (D) could reasonably be expected to disclose the identity of a 15 confidential source; 16 (E) would disclose confidential techniques and procedures for 17 law enforcement investigations or prosecutions; 18 (F) would disclose guidelines for law enforcement 19 investigations or prosecutions if the disclosure could reasonably be expected to 20 risk circumvention of the law; or 21 (G) could reasonably be expected to endanger the life or 22 physical safety of an individual; 23 (7) names, addresses, and other information identifying a person as a 24 participant in the Alaska Higher Education Savings Trust under AS 14.40.802 or the 25 advance college tuition savings program under AS 14.40.803 - 14.40.817; 26 (8) public records containing information that would disclose or might 27 lead to the disclosure of a component in the process used to execute or adopt an 28 electronic signature if the disclosure would or might cause the electronic signature to 29 cease being under the sole control of the person using it; 30 (9) reports submitted under AS 05.25.030 concerning certain 31 collisions, accidents, or other casualties involving boats;
01 (10) records or information pertaining to a plan, program, or 02 procedures for establishing, maintaining, or restoring security in the state, or to a 03 detailed description or evaluation of systems, facilities, or infrastructure in the state, 04 but only to the extent that the production of the records or information 05 (A) could reasonably be expected to interfere with the 06 implementation or enforcement of the security plan, program, or procedures; 07 (B) would disclose confidential guidelines for investigations or 08 enforcement and the disclosure could reasonably be expected to risk 09 circumvention of the law; or 10 (C) could reasonably be expected to endanger the life or 11 physical safety of an individual or to present a real and substantial risk to the 12 public health and welfare; 13 (11) the written notification regarding a proposed regulation provided 14 under AS 24.20.105 to the Department of Law and the affected state agency and 15 communications between the Legislative Affairs Agency, the Department of Law, and 16 the affected state agency under AS 24.20.105; 17 (12) records that are 18 (A) proprietary, privileged, or a trade secret in accordance with 19 AS 43.90.150 or 43.90.220(e); 20 (B) applications that are received under AS 43.90 until notice is 21 published under AS 43.90.160; 22 (13) information of the Alaska Gasline Development Corporation 23 created under AS 31.25.010 or a subsidiary of the Alaska Gasline Development 24 Corporation that is confidential by law or under a valid confidentiality agreement; 25 (14) information under AS 38.05.020(b)(11) that is subject to a 26 confidentiality agreement under AS 38.05.020(b)(12); 27 (15) names, addresses, and other information identifying a person 28 as a participant in the Alaska savings program for eligible individuals under 29 AS 06.65. 30 * Sec. 5. AS 45.55.990(32) is amended to read: 31 (32) "security" means a note; stock; treasury stock; bond; debenture;
01 evidence of indebtedness; certificate of interest or participation in any profit-sharing 02 agreement; limited liability company interest under AS 10.50, notwithstanding the 03 limitations of AS 45.08.103(c); collateral-trust certificate; preorganization certificate 04 or subscription; transferable share; investment contract; voting-trust certificate; 05 certificate of deposit for a security; viatical settlement interest; certificate of interest or 06 participation in an oil, gas, or mining title or lease or in payments out of production 07 under the title or lease or in any sale of or indenture or bond or contract for the 08 conveyance of land or any interest in land; an option on a contract for the future 09 delivery of agricultural or mineral commodities or any other commodity offered or 10 sold to the public and not regulated by the Commodity Futures Trading Commission; 11 however, the contract or option is not subject to the provisions of AS 45.55.070 if it is 12 sold or purchased on the floor of a bona fide exchange or board of trade and offered or 13 sold to the public by a broker-dealer or agent registered under this chapter; investment 14 of money or money's worth including goods furnished or services performed in the 15 risk capital of a venture with the expectation of some benefit to the investor where the 16 investor has no direct control over the investment or policy decision of the venture; or, 17 in general, any interest or instrument commonly known as a "security," or any 18 certificate of interest or participation in, temporary or interim certificate for, receipt 19 for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing; 20 "security" does not include a participation agreement entered into under AS 14.40.802, 21 a program account established under AS 06.65, or an insurance or endowment 22 policy or annuity contract under which an insurance company promises to pay a fixed 23 or variable sum of money either in a lump sum or periodically for life or for some 24 other specified period; 25 * Sec. 6. AS 47.07.055 is amended by adding a new subsection to read: 26 (h) In addition to the claims allowed under the other provisions of this section, 27 the state may file a claim under AS 06.65.320 against the amount in an individual's 28 program account after the individual dies. Notwithstanding the other provisions of this 29 section, the claim is subject to the requirements of 26 U.S.C. 529A(f) (Internal 30 Revenue Code). In this subsection, "program account" has the meaning given in 31 AS 06.65.390.
01 * Sec. 7. The uncodified law of the State of Alaska is amended by adding a new section to 02 read: 03 TRANSITION. The Department of Revenue shall file its first report required by 04 AS 06.65.350, added by sec. 2 of this Act, on or before the first day of the Second Regular 05 Session of the Thirtieth Alaska State Legislature. 06 * Sec. 8. The uncodified law of the State of Alaska is amended by adding a new section to 07 read: 08 TRANSITION: REGULATIONS. The Department of Revenue may adopt regulations 09 authorized by AS 06.65.340, added by sec. 2 of this Act. The regulations take effect under 10 AS 44.62 (Administrative Procedure Act), but not before the effective date of sec. 2 of this 11 Act. 12 * Sec. 9. Section 8 of this Act takes effect immediately under AS 01.10.070(c).