Section 1.
Amend Part IX, Title 16 of the Delaware Code by making deletions as
shown by strike through and insertions as shown by underline as follows:
CHAPTER 96A. DELAWARE ACHIEVING A BETTER LIFE EXPERIENCE
SAVINGS ACCOUNTS
§
9601A Purpose.
The
purpose of this chapter is to encourage and assist individuals and families in
saving private funds for the purpose of supporting individuals with
disabilities to maintain health, independence, and quality of life. This chapter is the State of Delaware’s
implementation of the federal Stephen J. Beck, Jr., Achieving a Better Life
Experience Act of 2014, Pub. L. No. 113-295, 128 Stat. 4010.
§
9602A Definitions.
As
used in this chapter:
(1)
“Account” means an individual account, a trust account, or a savings account
established in accordance with the provisions of this chapter.
(2)
“Account owner” means an eligible individual, or if the eligible individual is
under 18 years of age or is incapacitated, a parent or legal guardian of the
eligible individual.
(3)
“Contracting state” means a state that does not have a program compliant with
the federal ABLE act and which has entered into a contract with the State of
Delaware to provide residents of the other state access to Delaware’s Achieving
a Better Life Experience Program.
(4)
“Designated beneficiary” means, with respect to an account or accounts, the
eligible individual whose qualified disability expenses are expected to be paid
from the account.
(5)
“Eligible individual” means a resident of this State or a contracting state who
is:
a. Entitled to benefits based on blindness or disability under
Title II or XVI of the federal Social Security Act, where such blindness or
disability occurred before the date on which the individual attained age 26; or
b. An individual with respect to whom a disability certification,
meeting the requirements of the federal ABLE act, is filed.
(6)
“Federal ABLE act” means the Stephen J. Beck, Jr., Achieving a Better Life
Experience Act of 2014, Pub. L. No. 113-295, 128 Stat. 4010, and includes
subsequent amendments to that Act, as well as regulations promulgated
thereunder by the United States Secretary of the Treasury.
(7)
“Program” means the Delaware Achieving a Better Life Experience Program established
by this chapter.
(8)
“Qualified disability expenses” means any expenses related to the eligible
individual’s blindness or disability which are made for the benefit of an
eligible individual who is the designated beneficiary, including the following
expenses: education, housing, transportation, employment training and support,
assistive technology and personal support services, health, prevention and
wellness, financial management and administrative services, legal fees,
expenses for oversight and monitoring, funeral and burial expenses, and other
expenses, which are approved by the federal regulations.
§
9603A Achieving a Better Life Experience Board; composition; establishment of
ABLE Program.
(a)
This chapter shall be administered by the Achieving a Better Life Experience
Board, hereinafter referred to as the Board. The Office of the State Treasurer
shall provide assistance to the Board in the administration of the Program as
directed by the Board chairperson.
(b)
The Board shall be composed of the following:
(1) A Board chairperson, selected by the Governor.
(2) The State Treasurer or the Treasurer’s designee.
(3) The Secretary of the Department of Health and Social Services,
or the Secretary’s designee.
(4) Two members of the public who by reason of their education and
experience relating to disabilities or financial planning are qualified to
serve, one to be appointed by the Speaker of the House of Representatives and
one to be appointed by the President Pro Tempore of the Senate.
(5) A current member of the Delaware College Investment Board, to
be appointed by the Governor.
(6) A person with a disability who is an eligible individual under
this chapter, to be appointed by the Governor.
(c)
Persons appointed to the Board pursuant to (b)(4), (5), and (6) of this section
shall serve for staggered two-year terms, except for the initial members of the
Board, two of whom shall serve for three years.
(d)
The Board shall establish, develop, implement and maintain a Delaware Achieving
a Better Life Experience Program for all eligible individuals and families for
the purpose of supporting individuals with disabilities to maintain health,
independence, and quality of life. The Board shall ensure and maintain the
program’s status as a “qualified ABLE program” as defined by the federal ABLE
act.
(e) The Board shall publish an annual report
to the Governor and General Assembly detailing its activities on or before
September 30 of each year.
§
9604A Powers of the Board.
The
Board shall have the following powers, duties and functions:
(1)
To make and enter into all contracts, agreements, or arrangements, and to
retain, employ, and contract for the services of private and public financial
institutions, depositories, consultants, investment advisors or manager, third party
plan administrators, research, and technical and other services necessary or
desirable for carrying out the purposes of this chapter.
(2)
To maintain, invest, and reinvest the funds contributed to the Program
consistent with the investment restrictions established by the Board. The investment restrictions shall be
consistent with the objectives of the Program and the Board shall exercise the
judgment and care then prevailing which people of prudence, discretion, and
intelligence exercise in the management of their own affairs with due regard to
the probable income and level of risk from investments of money belonging to
the State in accordance with the policies established by the Board.
(3)
To charge fees and expenses to the funds held under the program or to persons
establishing or owning accounts.
(4)
To promulgate rules and regulations necessary for the administration of this
chapter and to ensure the Plan’s compliance with the federal ABLE act.
§
9605A The Program.
(a)
An account may be opened by any person who desires to save to pay the qualified
disability expenses of an eligible individual, by making an initial
contribution to the program in accordance with regulations promulgated by the
Board.
(b)
Any person may make a contribution to an account once an account is opened.
(c)
Contributions to an account shall be made only in cash, except where otherwise
permitted by the federal ABLE act.
(d)
Separate records and accounting shall be required by the Program for each
account and reports shall be made no less frequently than annually to the
account owner and the designated beneficiary.
§
9606A Prohibitions.
(a)
A designated beneficiary may have only one account.
(b)
No account nor any interest in an account may be used as security for a loan.
(c)
Total contributions on behalf of a designated beneficiary may not exceed the
limit established under Subchapter XII, Chapter 34 of Title 14.
(d)
Except as permitted by the federal ABLE act, no person shall have the right to
direct the investment of any contributions to or earnings from the Program.
§
9607A State and local means-tested programs.
Accounts established pursuant to this chapter
shall not be included in determining income eligibility of the designated
beneficiary for state or local assistance programs.
§
9608A Limitations on liability.
(a) The
Board and each of its members shall be entitled to the immunities set forth in
Chapter 40 of Title 10, and in addition, no member of the Board shall be liable
for any act or omission made during the member's tenure on the Board, or for
any loss incurred by any person as a result of the participation by any Board
member in the Program. Further, the State shall indemnify each Board member who
is a party to or is threatened to be made a party to any threatened, pending,
or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, arising by reason of such member's
participation in the Program, against any expenses (including attorney's fees
if the Attorney General shall determine that such Board member is not entitled
to representation by the State), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by that member in connection with
such action, suit, or proceeding, if that member acted in good faith and in a
manner that member reasonably believed to be in the best interest of the State,
and with respect to any criminal action or proceeding, so long as that member
had no reasonable cause to believe that the member's conduct was unlawful. Any
expenses incurred by such Board member in defending a civil, administrative or
investigative action, suit or proceeding shall be paid by the State in advance
of the final disposition of such action, suit, or proceeding upon authorization
by a majority of the members of the Board and by the Governor of the State.
(b)
Neither the Program, the Board and each of its members, nor the State,
including the Office of the State Treasurer, shall insure any account or
guarantee any rate of return or any interest rate on any contribution; nor
shall they or any one of them be liable for any loss incurred by any person as
a result of participating in the plan.
Section 2. Amend Chapter 49,
Title 10 of the Delaware Code by making deletions as shown by strike through
and insertions as shown by underline as follows:
§ 4916 Exemption of Delaware College
Investment Plan Accounts and Delaware Achieving a Better Life Experience
Accounts.
(a) In addition to the
exemptions provided in §§ 4902 and 4903 of this title, there shall be exempt
from execution or attachment process assets held in and proceeds payable under
Chapter 5 of Title 13, or from any account established under the
Delaware College Investment Plan pursuant to subchapter XII of Chapter 34 of
Title 14 (a "Plan Account") or any account established under the
Delaware Achieving a Better Life Experience Program pursuant to Chapter 96A of
Title 16 (and “ABLE Account”). This exemption shall only apply to such
amount as does not exceed the total contributions permitted under § 529(b)(7)
of the Internal Revenue Code with respect to any Plan Account or ABLE
Account.
(b) This section shall not
exempt from execution or attachment assets contributed by a debtor to any Plan
Account or ABLE Account within 365 days to the extent that such assets
contributed within said 365 days exceed the greater of:
(1) $5,000;
or
(2) The
average annual contribution made by such debtor to such Plan Account or ABLE
Account for the 2 calendar years preceding the date of the filing of such
execution or attachment or the filing of such petition.
(c) This section shall not
exempt from execution or attachment any judgment obtained under § 554 of Title
30. If any portion of this section is held invalid or is preempted by federal
law, in whole or in part, the remaining portions shall remain in effect to the
maximum extent permitted by law.
(d) In the case of a Plan
Account or ABLE Account owned by a trust, nothing in this section may be
construed to limit the protections afforded to trusts by § 3536 of Title 12.
