How to Utilize 529A “Stable” Accounts to Help Clients with Disabilities

HOW TO UTILIZE 529A “STABLE” ACCOUNTS TO HELP CLIENTS WITH DISABILITIES

CLE Credit: 1.0 Sponsor: Office of the Kentucky State Treasurer Thursday, June 13, 2019 8:30 - 9:30 a.m. Carroll-Ford Galt House Hotel Louisville, Kentucky

A NOTE CONCERNING THE PROGRAM MATERIALS

The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgement pf the induvial legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program in dealing with a specific legal matter have a duty to research the original and current sources of authority.

Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237

Kentucky Bar Association

TABLE OF CONTENTS

The Presenters ...... i How to Utilize 529A “STABLE” Accounts To Help Clients with Disabilities ...... 1

THE PRESENTERS

Treasurer Allison J. Ball Kentucky State Treasurer Kentucky State Treasury 1050 US Highway 127 South, Ste 100 Frankfort, Kentucky 40601-4326

th ALLISON BALL is the 38 State Treasurer of the Commonwealth of Kentucky and the youngest statewide female elected official in the country. A University of Kentucky College of Law graduate, Treasurer Ball practiced bankruptcy law and spent time as an Assistant Floyd County Attorney prior to serving as State Treasurer. Treasurer Ball is focused on being a watchdog for Kentucky taxpayer dollars spent in Frankfort. Since taking office, she has launched a new transparency website making it easier for Kentuckians to see how the state government is spending their money, launched a savings and investment program for Kentuckians with disabilities called STABLE Kentucky, and created a Financial Empowerment Coalition and Database focused on improving the financial literacy of Kentuckians. Treasurer Ball is married to Taylor County, Kentucky native, Asa James Swan. The couple has one son, Levi, whose birth in 2018 made Treasurer Ball the first Kentucky constitutional officer to give birth while in office.

Noah R. Friend Kentucky State Treasury 1050 US Highway 127 South, Ste 100 Frankfort, Kentucky 40601-4326 [email protected]

NOAH FRIEND serves as general counsel for the Office of the Kentucky State Treasure. A native of Pikeville, Kentucky, Mr. Friend is a 2007 graduate of the University Of Kentucky College Of Law. After graduation, he served for three years as a law clerk to U.S. Magistrate Judge Edward B. Atkins in both Ashland and Pikeville, Kentucky. In 2011, he established a solo practice in Pikeville, which focused on bankruptcy and federal civil and criminal litigation. He represented hundreds of Eastern Kentucky families in the United States Bankruptcy Court, as well as representing dozens of small businesses who were sued in connection with large-scale corporate bankruptcies. In 2016 Mr. Friend became General Counsel to Kentucky State Treasurer, Allison Ball, and argued on her behalf before the Kentucky Supreme Court in the case of Beshear v. Bevin.

HOW TO UTILIZE 529A “STABLE” ACCOUNTS TO HELP CLIENTS WITH DISABILITIES Kentucky State Treasurer Allison J. Ball1

I. BACKGROUND

A. Federal Background

The Stephen Beck, Jr., Achieving a Better Life Experience (ABLE) Act passed in 2014. It allows states to create tax-advantaged savings accounts for eligible individuals with disabilities. The statute was codified at 26 U.S.C. §529A. As reflected by the location of the codification, the accounts are very similar to 529 college savings plans.

1. Tax Cuts and Jobs Act of 2017 increased contribution limitations.

2. Allows designated beneficiary to claim saver’s credit.

3. Allows limited rollovers from traditional 529 qualified tuition program to ABLE account.2

B. State Background

Kentucky State Treasurer Allison Ball worked with stakeholders in 2016 to make ABLE accounts available to Kentucky residents. Kentucky’s State Treasurer ABLE (“STABLE”) accounts are administered through the Kentucky State Treasury and are part of a multi-state consortium run through the State of Ohio.

C. Eligibility for Account

In order to open a STABLE account, the designated beneficiary must pass a simple eligibility test:

1. Diagnosed with a disability before age 26;

2. Condition is expected to last at least 12 consecutive months or result in death;

3. Resident of Kentucky;

4. No other ABLE accounts in existence.

1 The materials provided herein do not represent official legal guidance, or the official position of the Kentucky State Treasurer.

2 See, IRS Publication 907, Tax Highlights for Persons with Disabilities (2018).

The disability diagnosis portion of the test does not require that the individual be currently receiving benefits under the Social Security Act. If you have not received a disability determination under the Social Security Act, you may sign up if you have a disability certification from a physician.

II. BENEFITS OF STABLE ACCOUNT

STABLE accounts are highly beneficial for individuals with disabilities and their families and help provide a mechanism to achieve financial stability and independence without jeopardizing federal benefits.

A. Tax-Free Investment Growth

Money in a STABLE account can be invested and can grow without the earnings being subject to taxation.3

B. Eligibility for Government Programs

ABLE accounts are asset shields for purposes of SSI. While any income earned by the beneficiary still counts toward income limitations, assets held within an ABLE account DO NOT count toward asset limitations.

• For SSI purposes, only balances over $100,000 are counted as a resource.

ABLE accounts are also excluded from asset limitations for SNAP benefits. 7 CFR §273.8(e)(2)(ii).

C. High Annual/Lifetime Limits

The maximum yearly contribution limit is currently $15,000 from any person or any source.

1. If you are employed, you may be able to contribute up to an additional $12,140 from your income – increasing your total yearly contribution limit to $27,140.

2. The maximum lifetime limit is currently $468,000. You will not be able to make new contributions if your overall balance is $468,000 or above (although your account can continue to accrue earnings). Once your balance drops below the lifetime limit, you may resume making contributions.

3 See, IRS Publication 907, Tax Highlights for Persons with Disabilities (2018).

D. Individual Ownership

The accounts are owned by the individual with the disability. A parent, guardian or other individual can be assigned as the “Authorized Legal Representative” to help administer the account.

E. Broad Range of Approved Expenses

In order to qualify for favorable tax treatment, money spent from STABLE accounts must be used on “Qualified Disability Expenses.” Qualified Disability Expenses do not have to be merely medical expenses. They can include rent and basic living expenditures. While the following list is not exhaustive, some examples of qualified expenses are:

1. Education.

a. Tuition for preschool through post-secondary education.

b. Books.

c. Supplies and educational materials.

2. Housing.

a. Expenses for a primary residence.

b. Rent.

c. Purchase of a primary residence.

d. Mortgage payments.

e. Real property taxes.

f. Utility charges.

Note: SSI benefits can be affected if you use ABLE funds for any housing expenses. To avoid any impact to your SSI benefits, be sure to spend housing money within the same calendar month that you withdraw the money. For example, if you withdraw $800.00 from your STABLE Account on June 3rd for rent, you must pay that money to your landlord by June 30th. As long as you do not hold housing funds over from one calendar month to the next, the funds will not affect your SSI benefits.4

3. Transportation.

a. Expenses for transportation.

4 See, Social Security Administration, POMS SI 01130.0740.

b. Use of mass transit.

c. Purchase or modification of vehicles.

d. Moving expenses.

4. Employment training and support.

a. Moving expenses.

b. Expenses related to obtaining and maintaining employment.

c. Job-related training.

5. Health, prevention and wellness.

a. Expenses for health and wellness.

b. Premiums for health insurance.

c. Mental health, medical, vision, and dental expenses.

d. Habilitation and rehabilitation services.

e. Durable medical equipment.

f. Therapy.

g. Respite care.

h. Long-term services and supports.

i. Nutritional management.

j. Communication services and devices.

k. Adaptive equipment.

l. Personal assistance.

6. Assistive technology and personal support.

• Expenses for assistive technology and personal support (e.g., a smartphone for a child with autism)

7. Miscellaneous expenses.

a. Financial management and administrative services.

b. Legal fees.

c. Expenses for oversight.

d. Monitoring.

e. Home improvement, modifications, maintenance, and repairs.

f. Funeral and burial expenses.

F. Rollovers

Rollovers are permitted from a 529 college-savings plan to a 529A account. These rollovers currently count toward your annual limitation.

III. LIMITATIONS/PITFALLS

A. Improper Expenses

If you use STABLE accounts for improper expenses, you may have to pay regular income taxes, plus a 10 percent additional tax, on a portion of those funds. Additionally, the non-qualified funds you withdraw could be counted against you for purposes of determining your eligibility for means-tested public benefits programs, like Medicaid or SSI.

B. Annual Limitations (Suspension)

If a STABLE account exceeds $100,000 at any time, SSI benefits will be suspended, NOT terminated, until such time as the balance drops below $100,000. Medicaid benefits do not get suspended or terminated even if the balance exceeds $100,000.

C. Rollovers – Pitfalls

Rollovers from 529 accounts count against your annual contribution limits.

D. Medicaid Payback

If you received Medicaid benefits during the time you had your account open, Medicaid can file a claim for some amount of repayment. This does not mean that Medicaid automatically has first rights to the money in your STABLE account after your death. Your account can be used for a number of things before Medicaid could be repaid.

1. First, if you still have outstanding bills for any Qualified Disability Expenses, the money in your STABLE Account can be used to pay those expenses. Your account can also be used to pay for funeral and burial costs.

2. Medicaid can only seek repayment for amounts it paid after you opened your STABLE Account (or, if you rolled over from another ABLE plan, after you opened that first ABLE account). You can also

deduct the amount of any premiums you paid as part of a Medicaid Buy-In Program from the amount Medicaid can recoup.

IV. STABLE ACCOUNT VS. SPECIAL NEEDS TRUSTS

STABLE accounts can be used in conjunction with a special needs trust. Often, trusts will be set up to deposit funds into a STABLE account, due to ease of use.