N.Y. Mental Hygiene Law § 84.05: Powers and duties of the comptroller

§ 84.05 Powers and duties of the comptroller.

1. The comptroller shall establish a NY ABLE account plan for all

eligible individuals for the purpose of supporting individuals with

disabilities to maintain health, independence, and quality of life. The

comptroller is hereby authorized to promulgate any and all rules and

regulations necessary for the implementation of this article in

consultation with the commissioners of the office for people with

developmental disabilities, the office of mental health, the department

of health, and the office of temporary and disability assistance.

2. The comptroller may implement the NY ABLE savings account program

through use of third party vendors as administrators of such accounts,

and financial organizations as account depositories and managers. Under

the program, eligible individuals may establish accounts directly with

an account depository.

3. The comptroller may solicit proposals from financial organizations

to act as depositories and managers from the program. Financial

organizations submitting proposals shall describe the investment

instrument which will be held in accounts. The comptroller shall select

as program depositories and managers the financial organization, from

among the bidding financial organizations, that demonstrates the most

advantageous combination, both to potential program participants and

this state, of the following factors:

(a) Financial stability and integrity of the financial organization;

(b) The safety of the investment instrument being offered;

(c) The ability of the investment instrument to track increasing costs

of obtaining care for individuals with disabilities;

(d) The ability of the financial organization to satisfy recordkeeping

and reporting requirements;

(e) The financial organization's plan for promoting the program and

the investment it is willing to make to promote the program;

(f) The fees, if any, proposed to be charged to persons for opening or

maintaining accounts;

(g) The minimum initial deposit and minimum contributions that the

financial organization will require;

(h) The ability of banking organizations to accept electronic

withdrawals, including payroll deduction plans; and

(i) Other benefits to the state or its residents included in the

proposal, including fees payable to the state to cover expenses of

operation of the program.

3-a. Notwithstanding the provisions of subdivision three of this

section, the comptroller may, in his or her discretion, enter into a

contract with the existing third party administrator of the NYS college

choice tuition savings program for the purpose of administering the NY

ABLE savings account program and providing account depositories and

managers. The term of such contract shall expire on the same date as the

contract for the administration of the NYS college choice tuition

savings program expires. Following such expiration, the comptroller may,

in his or her discretion, solicit proposals for the purpose of

administering the NY ABLE savings account program and solicit proposals

for the purpose of administering the NYS college choice tuition savings

program jointly or separately.

4. The comptroller may enter into a contract with a financial

organization. Such financial organization management may provide one or

more types of investment instrument.

5. The comptroller may select more than one financial organization for

the program.

6. A management contract shall include, at a minimum, terms requiring

the financial organization to:

(a) Take any action required to keep the program in compliance with

requirements of section 84.09 of this article and any actions not

contrary to its contract to manage the program to qualify as a

"Qualified ABLE account" under subsection (1) of paragraph (b) of

section 529A of the Internal Revenue Code of 1986, as amended.

(b) Keep adequate records of each account, keep each account

segregated from each other account, and provide the comptroller with

information as required;

(c) compile and total information contained in statements required to

be prepared under section 84.09 of this article and provide such

compilations to the comptroller.

(d) If there is more than one program manager, provide the comptroller

with such information necessary to determine compliance;

(e) Provide the comptroller or his or her designee access to the books

and records of the program manager to the extent needed to determine

compliance with the contract;

(f) Hold all accounts for the benefit of the account owner;

(g) Be audited at least annually by a firm of certified public

accountants selected by the program manager and that the results of such

audit be provided to the comptroller; and

(h) Provide the comptroller with copies of all regulatory filings and

reports made by it during the term of the management contract or while

it is holding any accounts, other than confidential filings or reports

that will not become part of the program. The program manager shall make

available for review by the comptroller the results of any periodic

examination of such manager by any state or federal banking, insurance,

or securities commission, except to the extent that such report or

reports may not be disclosed under applicable law or the rules of such

commission.

7. The comptroller may provide that an audit shall be conducted of the

operations and financial position of the program depository and manager

at any time if the comptroller has any reason to be concerned about the

financial position, the recordkeeping practices, or the status of

accounts of such program depository and manager.

8. During the term of any contract with a program manager, the

comptroller shall conduct an examination of such manager and its

handling of accounts. Such examination shall be conducted at least

biennially if such manager is not otherwise subject to periodic

examination by the superintendent of financial services, the federal

deposit insurance corporation or other similar entity.

9. (a) If selection of a financial organization as a program manager

or depository is not renewed, after the end of its term:

(i) Accounts previously established and held in investment instruments

at such financial organization may be terminated;

(ii) Additional contributions may be made to such accounts;

(iii) No new accounts may be placed with such financial organization;

and

(iv) Existing accounts held by such depository shall remain subject to

all oversight and reporting requirements established by the comptroller.

(b) If the comptroller terminates a financial organization as a

program manager or depository, he or she shall take custody of accounts

held by such financial organization and shall seek to promptly transfer

such accounts to another financial organization that is selected as a

program manager or depository and into investment instruments as similar

to the original instruments as possible.

10. The comptroller may enter into such contracts as it deems

necessary and proper for the implementation of the program.