MCA Chapter 28

in effect

Miss. Code Ann. § 43-28-1 Short title.

This chapter shall be known and may be cited as the “Mississippi Achieving a Better Life Experience (ABLE) Act.”

Miss. Code Ann. § 43-28-3 Legislative intent.

It is the intent of the Legislature to establish a qualified Achieving a Better Life Experience (ABLE) Program in this state which will encourage and assist the saving of private funds in tax-exempt accounts in order to pay for the qualified disability expenses of eligible individuals with disabilities. The Legislature intends that the qualified ABLE Program be implemented in a manner that is consistent with federal law authorizing the program and that maximizes program efficiency and effectiveness.

Miss. Code Ann. § 43-28-5 Definitions.

As used in this chapter the following words and phrases have the meanings ascribed in this section unless the context clearly indicates otherwise: “Mississippi ABLE account” means an account established and maintained under the Mississippi ABLE Program or entered into through a participation agreement with another state that has contracted with the Mississippi ABLE Board, or a consortium of states that have agreed to provide ABLE accounts to the residents of participating states. “Board” or “board of directors” means the Mississippi ABLE Board of Directors. “Contracting state” or “consortium” means a state or group of states that have entered into a contract with the Mississippi ABLE Board or a multistate Compact with the ABLE Boards of several states to provide residents of Mississippi or, in the case of a consortium, residents of participating states with access to a qualified ABLE Program. “Designated beneficiary” means the eligible individual who established an ABLE account or the eligible individual to whom an ABLE account was transferred. “Eligible individual” has the same meaning as provided in Section 529A of the Internal Revenue Code. “Mississippi ABLE Program” means the qualified ABLE Program established and maintained under this section by the Mississippi ABLE Board, and administered through the Mississippi Department of Rehabilitation Services. “Internal Revenue Code” means the United States Internal Revenue Code of 1986, as amended, and regulations adopted pursuant thereto. “Participation agreement” means the agreement between the Mississippi ABLE Board, and a participant in the Mississippi ABLE Program. “Qualified ABLE Program” means the program authorized under Section 529A of the Internal Revenue Code which may be established by a state or agency, or instrumentality thereof, to allow a person to make contributions for a taxable year to an ABLE account established for the purpose of meeting the qualified disability expenses of the designated beneficiary of the ABLE account. “Qualified disability expense” has the same meaning as provided in Section 529A of the Internal Revenue Code. “Section 529A of the Internal Revenue Code” or “Section 529A” means 26 USCS Section 529A.

Miss. Code Ann. § 43-28-7 Mississippi ABLE Board of Directors created; membership.

There is created the Mississippi ABLE Board of Directors which shall consist of nine (9) members as follows: The State Treasurer, or his or her designee; The Executive Director of the Department of Rehabilitation Services, or his or her designee; The Executive Director of the Department of Mental Health, or his or her designee; Three (3) members of the public who, by reason of his or her education and experience relating to disabilities or financial planning, is qualified to serve, to be appointed by the Governor one (1) of whom shall be appointed from each Supreme Court District; The Executive Director, or his or her designee, of an advocacy organization for citizens of all ages with cognitive, intellectual and developmental disabilities and their families, to be appointed by the Governor; The Executive Director, or his or her designee, of an advocacy organization for citizens of all ages with cross disabilities and their families, to be appointed by the Governor; and The Executive Director, or his or her designee, of an advocacy organization for citizens with mental health disabilities, to be appointed by the Governor. Of the six (6) appointed members by the Governor: One (1) member shall be appointed for an initial term of one (1) year; one (1) member shall be appointed for an initial term of two (2) years; one (1) member shall be appointed for an initial term of three (3) years; one (1) member shall be appointed for an initial term of four (4) years; one (1) member shall be appointed for an initial term of five (5) years; and one (1) member shall be appointed for an initial term of six (6) years. On the expiration of any of the terms of office, successor appointees shall be appointed for terms of five (5) years in each case. Ex officio members of the board may be represented at official meetings by their deputy, or other designee, and such designees shall have full voting privileges and shall be included in the determination of a quorum for conducting board business. Initial members of the board shall be appointed within thirty (30) days after March 20, 2017, and shall meet at the state office of the Department of Rehabilitation Services, at a date to be fixed by the Executive Director of the Department of Rehabilitation Services, not later than thirty (30) days after all appointments have been made, to organize and select a chairman and vice chairman, and develop an implementation plan for the Mississippi ABLE Program, which shall be completed on or before October 1, 2017.The chairman shall preside over all meetings. Successors to the appointed members shall serve for the length of the term for each appointing official and shall be eligible for reappointment, and shall serve until a successor is appointed and qualified. Any person appointed to fill a vacancy on the board shall be appointed in a like manner and shall serve for only the unexpired term. Members of the board of directors shall serve without compensation, but shall be reimbursed for each day’s official duties of the board at the same per diem as established by Section 25-3-69, and actual travel and lodging expenses as established by Section 25-3-41. The board of directors shall annually elect one (1) member to serve as chairman of the board and one (1) member to serve as vice chairman. The vice chairman shall act as chairman in the absence of, or upon the disability of the chairman, or in the event of a vacancy of the office of chairman. A majority of the currently serving members of the board shall constitute a quorum for the purposes of conducting business and exercising its official powers and duties. Any action taken by the board shall be upon the vote of a majority of the members present.

Miss. Code Ann. § 43-28-9 Powers of board.

In addition to those powers granted to the board by any other provisions of this chapter, the Mississippi ABLE Board shall have the powers necessary to carry out the purposes and provisions of this chapter, the purposes and objectives of ABLE accounts, and the powers delegated by any other law or executive order of this state, including, but not limited to, the following express powers: To adopt such rules and regulations as are necessary to implement this chapter, subject to applicable federal laws and regulations, including rules regarding transfers of funds between ABLE accounts established under the provisions of this chapter and independent personal bank accounts; To impose reasonable requirements for beneficiaries or account owners at the time of enrollment in the Mississippi ABLE Program; To consult with the Executive Director of the Department of Rehabilitation Services and the State Treasurer for the department’s employment of a Mississippi ABLE Coordinator, who shall: Coordinate meetings of the board and keep minutes of its actions; Remain informed of developments in federal rules and regulations affecting ABLE accounts and ensure that the Mississippi ABLE Program remains in compliance; Be authorized to enter into contracts, on behalf of the Mississippi ABLE Board, with records administrators, program managers, consultants and other qualified persons and entities for administrative and technical assistance in carrying out the responsibilities of the Mississippi ABLE Program; and Perform such other duties as the board may prescribe; To contract for necessary goods and services, to employ necessary personnel, and to engage the services of consultants and other qualified persons and entities for administrative and technical assistance in carrying out the responsibilities of the ABLE account funds under terms and conditions that the board deems reasonable, including contract terms for such consideration, and for such purposes as the board deems advisable; To solicit and accept gifts, including bequests or other testamentary gifts made by will, trust or other disposition grants, loans and other aids from any personal source or to participate in any other way in any federal, state or local governmental programs in carrying out the purposes of this chapter; To define the terms and conditions under which payments may be withdrawn for qualifying expenses established under this chapter and to impose reasonable transaction fees; To serve as an information clearinghouse for the gathering, compilation and dissemination of educational and programmatic materials relating to the design, operation and benefits provided through ABLE accounts and access to entry into the program; To regulate the receipt of contributions or payments to the ABLE Trust Fund; To segregate contributions and payments to the ABLE Trust Fund into various accounts and funds; To require and collect administrative fees and charges in connection with any transaction and to impose reasonable penalties for withdrawal of funds for nonqualified expenses or for entering into a ABLE account agreement on a fraudulent basis; To procure insurance against any loss in connection with the property, assets and activities of the ABLE Trust Fund or the board; To require that account owners of ABLE account agreements verify, under sworn attestation, any requests for contract conversions, substitutions, transfers, cancellations, refund requests or contract changes of any nature; To solicit proposals and to contract for the marketing of the Mississippi ABLE Program, provided that: (i) any materials produced by a marketing contractor for the purpose of marketing the program must be approved by the board before being made available to the public; and (ii) neither the state nor the board shall be liable for misrepresentation of the program by a marketing contractor; To delegate responsibility for administration of the comprehensive investment plan to a contractor or contractors or a consultant or consultants that the board determines is qualified; To make all necessary and appropriate arrangements with vendors, health care service providers, rehabilitation specialists or other entities in order to fulfill its obligations under ABLE account agreements; To establish other policies, procedures and criteria necessary to implement and administer this chapter; To authorize the Department of Rehabilitation Services with the advice of the State Treasurer, to carry out any or all of the powers and duties enumerated in this section for efficient and effective administration of the Mississippi ABLE Program and ABLE Trust Fund; To develop a user-friendly website or access link on the Department of Rehabilitation Services’ website to serve as a virtual program and access portal to information about the ABLE Program and how an individual might be able to enroll, whether in the State of Mississippi or in a contracting state with whom Mississippi has entered into a contractual relationship either bilaterally or as part of an ABLE consortium; To provide an ABLE assistance helpline by which those having inquires can be directed to the proper entity for assistance in qualifying and enrolling in an ABLE Program; and To develop and provide an “Account Holder’s Bill of Rights” to each individual, who is a Mississippi resident, and who enrolls in the ABLE Program whether such account is managed inside or outside of the state.

Miss. Code Ann. § 43-28-11 ABLE Trust Fund created; Trust Fund accounts.

There is created a Mississippi Achieving a Better Life Experience (ABLE) Trust Fund as an instrumentality of the state to be administered by the Department of Rehabilitation Services in consultation with the Treasury Department. The ABLE Trust Fund shall consist of state appropriations, monies acquired from other governmental or private sources and money remitted in accordance with ABLE participation agreements, and shall receive and hold all payments, contributions and deposits intended for it as well as gifts, bequests, endowments or federal, state or local grants and any other public or private source of funds and all earnings on the fund until disbursed as provided under this section. The amounts on deposit in the trust fund shall not constitute property of the state. Amounts on deposit in the trust fund may not be commingled with state funds, and the state may have no claim to or interest in such funds. ABLE participation agreements or any other contract entered into by or on behalf of the trust do not constitute a debt or obligation of the state, and no account owner is entitled to any amounts except for those amounts on deposit in or accrued to their account. The ABLE Trust Fund shall continue in existence as long as it holds any funds belonging to an account owner or otherwise has any obligations to any person or entity until its existence is terminated by the Legislature based on the recommendation of the Mississippi ABLE Board, and remaining assets on deposit in the fund are returned to account owners or transferred to the state in accordance with unclaimed property laws. There are created the following three (3) separate accounts within the ABLE Trust Fund: The administrative account, which shall accept, deposit and disburse funds for the purpose of administering and marketing the program; The endowment account, which shall receive and deposit accounts received in connection with the sales of interests in the ABLE Trust Fund other than amounts for the administrative account and other than amounts received pursuant to a participation agreement. Amounts on deposit in the endowment account may be applied as specified by the board for any purpose related to the program; and The program account, which shall receive, invest and disburse amounts pursuant to participation agreements. Payments received by the board on behalf of account owners from other payors or any other source, public or private, shall be placed in the ABLE Trust Fund, or in the event ABLE accounts are established in other states pursuant to an agreement entered into with a contracting state or consortium state, and the board shall cause there to be maintained separate records and accounts for individual account owners, as may be required under Section 529A of the Internal Revenue Code of 1986, as amended, and any other applicable federal law. Account owners and any other payors or contributors shall be permitted only to contribute cash or any other form of payment or contribution as is permitted under Section 529A of the Internal Revenue Code of 1986, as amended, and approved by the board. The account owner retains ownership of all amounts on deposit in his or her account with the Mississippi ABLE Program up to the date of withdrawal of qualified disability expense transactions. Earnings derived from investment of the contributions shall be considered to be held in trust in the same manner as contributions, except as applied for purposes of maintaining and administrating the program as provided in this chapter. Amounts on deposit in an account owner’s account shall be available for expenses and penalties imposed by the board for the program as disclosed in the ABLE participation agreement. The assets of the ABLE Trust Fund shall be preserved, invested and expended solely pursuant to and for the purposes of this chapter and shall not be loaned or otherwise transferred or used by the state for any other purpose.

Miss. Code Ann. § 43-28-13 ABLE Trust Fund property and income exempt from state taxation; deduction of contributions to ABLE Program accounts from taxable income; amounts in ABLE account not considered in determining eligibility for certain public assistance.

All property and income of the ABLE Trust Fund, as an instrumentality of the state, is exempt from all taxation by the state and by its political subdivisions. Any contributor or payor to a Mississippi ABLE Program account may deduct from their Mississippi taxable income any contributions or payments to an account or accounts in the ABLE Trust Fund up to a maximum annual amount limit established by Congress for such accounts for single, joint and other filers. Contributions or payments for such tax years may be made after such calendar years but before the deadline for making contributions to an individual retirement account under federal law for such years. The earnings portion of any withdrawals from an account that are not qualified withdrawals, as well as any amounts included in such nonqualified withdrawals previously deducted from taxable income under this section, shall be included in the gross income of the recipient of the withdrawal for purposes of the Mississippi Income Tax Law in the year of such withdrawal. Additionally, the participation of any Mississippi resident in the Mississippi ABLE Program or any other qualified ABLE Program, shall not preclude the resident from receiving any benefit or assistance provided by the State of Mississippi for which they are eligible. Funds in an individual’s Mississippi ABLE account or any other ABLE account shall be exempt from any consideration when any agency or subdivision of the state is determining an individual’s eligibility for state-provided assistance. Likewise, any tangible assets purchased with Mississippi ABLE account funds or any other ABLE account funds which are not otherwise disqualified as a countable resource of a program participant shall be exempt from consideration when determining such person’s eligibility provided by the state, to the extent allowable under federal law.

Miss. Code Ann. § 43-28-15 Authority of Board to establish a comprehensive investment plan.

The board has authority to establish a comprehensive investment plan for the purposes of this chapter, to invest any funds of the ABLE Trust Fund in any instrument, obligation, security or property that constitutes legal investments for public funds in the state, and to name and use depositories for its investments and holdings. The comprehensive investment plan shall specify the investment policies to be utilized by the board in its administration of the funds. The board may authorize investments in any investment vehicle authorized for the Mississippi Achieving a Better Life Experience Program. All investments shall be acquired by the board at prices not exceeding the prevailing market values for such securities and shall be marked clearly to indicate ownership by the system and, to the extent possible, shall be registered in the name of the system. Except as otherwise provided in this section, no trustee or employee of the board may have any direct or indirect interest in the income, gains or profits of any investment made by the board, and such person may not receive any pay or emolument for his services in connection with any investment made by the board. No trustee or employee of the board may become an endorser or surety or in any manner an obligor for money loaned by or borrowed from the system. Under the authority granted in Section 43-28-9, the board may establish criteria for investment managers, mutual funds or other such entities to act as contractors or consultants to the board. The board may contract, either directly or through such contractors or consultants, to provide such services as may be a part of the comprehensive investment plan or as may be deemed necessary or proper by the board, including, but not limited to, providing consolidated billing, individual and collective record keeping and accounting, and asset purchase, control and safekeeping. No account owner, contributor or payor may directly or indirectly direct the investment of any account except as may be permitted under Section 529A of the Internal Revenue Code of 1986, as amended.

Miss. Code Ann. § 43-28-17 Administration of Mississippi ABLE Program; provisions of program account participation agreement; termination of program.

On or before July 1, 2018, the Mississippi ABLE Board shall establish and administer the Mississippi ABLE Program or shall enter into a contractual relationship or into a consortium with another state or states to provide qualifying Mississippi residents access to enrollment in an operating ABLE Program. Before implementing the program, the board shall obtain a written opinion from counsel specializing in: Federal tax matters which indicate that the Mississippi ABLE Program is designed to comply with Section 529A of the Internal Revenue Code; and Federal securities law which indicate that the Mississippi ABLE Program and the offering of participation in the program are designed to comply with applicable federal securities law and qualify for the available tax exemptions under such law. The Mississippi ABLE account participation agreement must include provisions specifying that: The participation agreement is only an obligation of the Mississippi ABLE Program and the ABLE Trust Fund and is not an obligation of the state; Participation in the Mississippi ABLE Program does not guarantee that sufficient funds will be available to cover all qualified disability expenses for any designated beneficiary and does not guarantee the receipt or continuation of any product or service for the designated beneficiary; The designated beneficiary must be a resident of this state or a resident of a contracting or consortium state at the time the ABLE account is established; The establishment of an ABLE account in violation of federal law is prohibited; Contributions in excess of the limitations set forth in Section 529A of the Internal Revenue Code are prohibited; The state is a creditor of ABLE accounts as, and to the extent, set forth in Section 529A of the Internal Revenue Code; and Material misrepresentations by a party to the participation agreement, other than the board in the application for the participation agreement or in any communication with the board regarding the Mississippi ABLE Program may result in the involuntary liquidation of the ABLE account. If an account is involuntarily liquidated, the designated beneficiary is entitled to a refund, subject to any fees or penalties provided by the participation agreement and the Internal Revenue Code. The participation agreement may include provisions specifying: The requirements and applicable restrictions for opening an ABLE account; The eligibility requirements for a party to a participation agreement and the rights of the party; The requirements and applicable restrictions for making contributions to an ABLE account; The requirements and applicable restrictions for directing the investment of the contributions or balance of the ABLE account; The administrative fee and other fees and penalties applicable to an ABLE account; The terms and conditions under which an ABLE account or participation agreement may be modified, transferred or terminated; The disposition of abandoned ABLE accounts; and Any other terms and conditions determined to be necessary or proper to conform the participation agreement with the requirements of Section 529A of the Internal Revenue Code. The participation agreement may be amended throughout its term for purposes that include, but are not limited to, allowing a participant to increase or decrease the level of participation and to change designated beneficiaries and other matters authorized by this section and Section 529A of the Internal Revenue Code. Notwithstanding any other provision of law, the Mississippi ABLE Board, acting through the ABLE Coordinator, may enter into an agreement with contracting states which either allow Mississippi residents to participate under the design, operation, and rules of a contracting state’s qualified ABLE Program or which allows residents of a participating contracting state to participate under the Mississippi ABLE Program. The Mississippi ABLE Program shall continue in existence until terminated by law. If the Mississippi ABLE Board determines that the program is financially infeasible, the board shall submit its recommendation, in the form of a feasibility report, to the Legislature to terminate the program.

Miss. Code Ann. § 43-28-19 Annual statements and reports.

The board shall furnish, without charge, to each account owner an annual statement of the following: The amount contributed by the account owner under the participation agreement; The annual earnings and accumulated earnings on the ABLE account; and Any other terms and conditions that the board deems by rule is necessary or appropriate, including those necessary to conform the savings trust account with the requirements of Section 529 of the Internal Revenue Code of 1986, as amended, or other applicable federal law or regulations. The board shall furnish an additional statement complying with subsection (1) to an account owner or beneficiary on written request. The board may charge a reasonable fee for each statement furnished under this subsection. On or before November 1, 2018, the board shall prepare a report on the status of the establishment of the Mississippi ABLE Program. The report must also include, if warranted, recommendations for statutory changes to enhance the effectiveness and efficiency of the program. The board shall submit copies of the report to the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, the State Treasurer and to the Executive Director of the Department of Rehabilitation Services. The board, in its discretion as to frequency, shall cause to be prepared annual reports setting forth in appropriate detail an accounting of the funds and a description of the financial condition of the program, which shall be submitted no later than ninety (90) days after the end of each fiscal year. Such report shall be submitted to the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, the State Treasurer and to the Executive Director of the Department of Rehabilitation Services. The accounts of the fund shall be subject to annual audits by the State Auditor or his designee.

Miss. Code Ann. § 43-28-21 Mississippi ABLE Program monies paid into or expended out of the trust fund on behalf of a beneficiary are exempt from creditor claims; prohibition against use as loan collateral.

Monies paid into or expended out of the ABLE Trust Fund by or on behalf of a designated beneficiary are exempt from all claims of creditors of the designated beneficiary if the participation agreement has not been terminated. Monies paid into the Mississippi ABLE Program and benefits accrued through the program may not be pledged for the purpose of securing a loan.

Miss. Code Ann. § 43-28-23 Distribution requirements.

Upon the death of the designated beneficiary, the appropriate health care administration agency and the Division of Medicaid of another state in which the beneficiary received services may file a claim with the Mississippi ABLE Program for the total amount of medical assistance provided for the designated beneficiary under the Medicaid program since the inception of the Mississippi ABLE account, less any premiums paid by or on behalf of the designated beneficiary to a Medicaid buy-in program. Funds in the ABLE account of the deceased designated beneficiary must first be distributed for qualified disability expenses followed by distributions for the Medicaid claim authorized under this paragraph. Any remaining amount shall be distributed as provided in the participation agreement required under Section 43-28-19. The Mississippi ABLE Coordinator shall assist and cooperate with the appropriate health care administration agency and the Division of Medicaid in other states which have provided services to a Mississippi ABLE account beneficiary, by providing the agency and divisions with the information needed to accomplish the purpose and objective of this section.

Miss. Code Ann. § 43-28-25 Certain state agencies required to assist board.

The Mississippi Department of Health, the Department of Rehabilitation Services, the Division of Medicaid, the Department of Child Protection Services and the State Department of Education shall assist, cooperate and coordinate with the Mississippi ABLE Board in the provision of public information and outreach for the Mississippi ABLE Program.

Miss. Code Ann. § 43-28-27 Severability.

The provisions of this chapter are severable. If any part of this chapter is declared invalid or unconstitutional, such declaration shall not affect the parts of this chapter which remain.