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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsOctober 2016

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Delaware Health and Social Services (“Department”) / Division of Medicaid and Medical Assistance initiated proceedings to amend the Delaware Social Services Manual (DSSM) regarding Financial Institution Accounts, specifically, to add language that exempts Achieving a Better Life Experience (ABLE) accounts from being counted towards the determination of eligibility for state or local assistance programs. The Department’s proceedings to amend its regulations were initiated pursuant to 29 Delaware Code Section 10114 and its authority as prescribed by 31 Delaware Code Section 512.
The Department published its notice of proposed regulation changes pursuant to 29 Delaware Code Section 10115 in the May 2016 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by May 31, 2016 at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations.
26 USC §529A, Qualified ABLE programs
§201 of the Social Securities Act, Federal old-age and survivors insurance trust fund and federal disability insurance trust fund
§1602 of the Social Securities Act, Basic eligibility for SSI benefits
16 Del.C. Ch. 96A §9601A-§9608A, Delaware Achieving a Better Life Savings Accounts
Delaware has published legislation addressing the implementation and administration of the Stephen Beck, Jr., ABLE Act of 2014, in Delaware under 16 Del.C. Ch. 96A, Delaware Achieving a Better Life Experience Savings Accounts. The purpose of 16 Del.C. Ch. 96A 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.
In accordance with the federal public notice requirements established at Section 1902(a)(13)(A) of the Social Security Act and 42 CFR 447.205 and the state public notice requirements of Title 29, Chapter 101 of the Delaware Code, Delaware Health and Social Services (DHSS)/Division of Medicaid and Medical Assistance (DMMA) gives public notice and provides an open comment period for thirty (30) days to allow all stakeholders an opportunity to provide input on the Delaware Social Services Manual provisions regarding Delaware Achieving a Better Life Experience (ABLE) Savings Accounts. Comments must be received by 4:30 p.m. on May, 31 2016.
First, in §20330.2.1.1, the definition of “person with signature authority” merits reconsideration. The first sentence reads as follows:
Agency Response: DMMA appreciates the Council’s perspective on the wording of this particular definition, which was taken from Supplemental Security Income (SSI) policy (see SI 01130.740 Achieving a Better Life Experience (ABLE) Accounts), on which Medicaid Long-Term Care (LTC) eligibility policy is based. We have modified this definition for the final regulation, substituting the phrasing above for the original version.
Person with signature authority” means a person who can establish and control an ABLE account for a designated beneficiary. If the designated beneficiary is not able to exercise signature authority over his or her ABLE account, or chooses to establish an ABLE account but not exercise signature authority, references to the designated beneficiary with respect to his or her actions include actions by the designated beneficiary’s agent under a power of attorney or, if none, a parent or legal guardian of the designated beneficiary.
Second, in §20330.2.1.1, the definition of “ABLE program” refers to a program established or maintained “by a State (or agency or instrumentality thereof)...” This is consistent with the proposed federal regulation. See 80 Fed Reg. at 35612(June 22, 2015). Many states are contemplating implementation through a consortium of states. Therefore, DMMA could consider expanding the reference as follows: “by a State or consortium of states (or agency or instrumentality thereof)...”
Agency Response: DMMA agrees with the suggested revision of this section of the proposed policy. We have revised the definition for the final regulation as follows:
ABLE Program” means a program established and maintained by a State or consortium of states (or agency or instrumentality thereof) through which interested individuals can open ABLE accounts.
Third, for similar reasons, DMMA could consider amending the definition of “eligible individual” as follows: “a resident of this State, a contracting state, or a state participating in a consortium arrangement who is: ...”
Agency Response: DMMA agrees with the suggested broaden the language used in this definition. We have revised the definition for the final regulation as follows:
Eligible Individual” means a resident of this State, or any state, in which an ABLE program is established who is:
Fourth, for similar reasons, DMMA could consider amending §20330.2.1.2.2 as follows: “The State or consortium ABLE program that is administering the account.”
Agency Response: DMMA agrees with the suggested revision of this section of the proposed policy. We have revised this section for the final regulation as follows:
20330.2.1.2.2 The State or consortium ABLE program that is administering the account;
Fifth, in §20330.2.1.1, the definition of “eligible individual” requires the person to be a resident of Delaware or “a contracting state”. The proposed federal regulation would allow some persons (e.g. military) to keep an account even if the person is no longer a resident of the state. See attached 80 Fed Reg at 35608. Therefore, there is some “tension” between the “residency” requirement and the proposed federal regulation. Moreover, consistent with the attached January 11, 2016 article, Congress amended the law so an eligible person can open an account in any state, regardless of where the person resides.
Agency Response: DMMA appreciates the Council’s comment on this subject. However, we believe that the revised definition of “Eligible Individual” (see response to item three (3) above) is sufficiently broad to cover individuals who may be beneficiary of an ABLE Account, regardless of their state of residence.
Sixth, in §20330.2.1.3, second sentence, there is a plural pronoun (“their”) with a singular antecedent (“person”). This can be easily corrected by substituting “the person’s” for “their”.
Agency Response: DMMA agrees with the Council’s suggested revision.The final regulation will be revised as follows:
Seventh, in §20330.2.1.5, correct the grammar by substituting “the beneficiary’s” for “their”.
Agency Response: DMMA agrees with the Council’s suggested revision. The final regulation will be revised as follows:
20330.2.1.5 ABLE Account Balance
Eighth, §§20330.2.1.6.1 and 20330.2.1.6.2 treat distributions for housing less favorably than other distributions. If a housing distribution is made on May 31 and paid to a landlord on June 1, the entire housing distribution would be considered a countable resource for the month of June. This is an unreasonable approach.
Agency Response: DMMA appreciates the Council’s feedback on this issue. However, LTC Medicaid eligibility policy is based on SSI policy. SSI policy treats distributions for housing expenses differently than other Qualified Disability Expenses (QDE). 26 USC §529A Treatment of ABLE Accounts Under Certain Federal Programs (a)(1) states the following:
THEREFORE, IT IS ORDERED, that the proposed regulation to amend the Delaware Social Services Manual (DSSM) regarding Financial Institution Accounts, specifically, to add language that exempts Achieving a Better Life Experience (ABLE) accounts from being counted towards the determination of eligibility for state or local assistance programs, is adopted and shall be final effective October 11, 2016.
Stephen Beck, Jr., Achieving a Better Life Experience (ABLE) Act of 2014,
ABLE Program” means a program established and maintained by a State [or consortium of states] (or agency or instrumentality thereof) through which interested individuals can open ABLE accounts.
Contributions” means the deposit of funds into an ABLE account. Any person can contribute to an ABLE account. (Note that “person,” as defined by the Internal Revenue Code, includes an individual, trust, estate, partnership, association, company, or corporation.) However, the Internal Revenue Service (IRS) limits the total annual contributions any ABLE account can receive from all sources to the amount of the per-donee gift-tax exclusion in effect for a given calendar year.
Designated beneficiary” means the eligible individual who established and is the owner of the ABLE account.
Distributions” means the withdrawal or issuance of funds from an ABLE account. The designated beneficiary or the person with signature authority determines when distributions are made. Distributions may be made only to or for the benefit of the designated beneficiary.
Eligible Individual” means a resident of this State [or a contracting state or any state in which an ABLE program is established,] who is:
Person with signature authority” means [a person who can establish and control an ABLE account for a designated beneficiary who is a minor child or is otherwise incapable of managing the account. The person with signature authority must be the designated beneficiary’s parent, legal guardian, or agent acting under power of attorney. We consider the designated beneficiary to be the owner of an ABLE account, regardless of whether someone else has signature authority over it. a person who can establish and control an ABLE account for a designated beneficiary. If the designated beneficiary is not able to exercise signature authority over his or her ABLE account, or chooses to establish an ABLE account but not exercise signature authority, references to the designated beneficiary with respect to his or her actions include actions by the designated beneficiary’s agent under a power of attorney or, if none, a parent or legal guardian of the designated beneficiary.]
Qualified disability expense” or “QDE” means an expense related to the blindness or disability of the designated beneficiary and that are for the benefit of the designated beneficiary. In general, a QDE includes, but is not limited to, the following types of expenses:
Qualified disability expense for housing” means expenses for purposes of an ABLE account are the same as they are for in-kind support and maintenance purposes, except that they do not include food. QDEs for housing are payments for:
Rollover” means the distribution of all or some of the funds from one ABLE account to the ABLE account of a member of the original, designated beneficiary’s family. For the purposes of a rollover, a member of the designated beneficiary’s family means a sibling, which includes step-siblings and half-siblings, whether by blood or by adoption.
20330.2.1.2.1 The name of the designated beneficiary;
20330.2.1.2.2 The State [or consortium] ABLE program that is administering the account;
20330.2.1.2.3 The name of the person who has signature authority (if different from the designated beneficiary);
20330.2.1.2.4 The unique account number assigned by the State to the ABLE account;
20330.2.1.2.5 The account opened date; and
20330.2.1.2.6 The first-of-the-month account balance or information sufficient to derive a first-of-the-month balance.
Exclude the balance of a designated beneficiary’s ABLE account from [their the beneficiary’s] countable resource computation when determining the designated beneficiary’s eligibility.
Distributions for QDEs not related to housing should be excluded as a resource if retained beyond the month received. This exclusion applies for as long as:
20330.2.1.6.1.1 The designated beneficiary maintains, makes contributions to, or receives distributions from the ABLE account.
20330.2.1.6.1.2 The distribution is unspent; and
20330.2.1.6.1.3 The distribution is identifiable.
(NOTE: Excludable funds commingled with non-excludable funds must be identifiable in order to be excluded.)
Distributions from a designated beneficiary’s ABLE account for housing-related QDEs or for expenses that are not QDEs that are retained into the month following the month of receipt are countable as a resource. If the distribution is spent within the month of receipt it has no effect on eligibility.
Last Updated: December 31 1969 19:00:00.
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