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This entry was published on 2019-11-29
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Program requirements
Mental Hygiene (MHY) CHAPTER 27, TITLE E, ARTICLE 84
§ 84.09 Program requirements.

1. "NY ABLE" accounts established pursuant to the provisions of this
article shall be governed by the provisions of this section.

2. (a) An application for a NY ABLE account shall be in the form
prescribed by the program and contain the following:

(i) the name, address and social security number or employer
identification number of the account owner;

(ii) the designation of a designated beneficiary;

(iii) the name, address and social security number of the designated
beneficiary; and

(iv) such other information as the program may require.

(b) The comptroller may establish a nominal fee for such application.

3. An account owner may own only one NY ABLE account unless otherwise
permitted by section 529A of the Internal Revenue Code of 1986, as

4. Any person, including the account owner, may make contributions to
the account after the account is opened.

5. Contributions to accounts may be made only in cash.

6. Contributions to a NY ABLE account shall not exceed the limit on
annual contributions established under paragraph (2) of subsection (b)
of section 529A of the Internal Revenue Code of 1986, as amended.

7. An account owner may withdraw all or part of the balance from an
account on sixty days notice or such shorter period as may be authorized
under rules governing the program. Such rules shall include provisions
that will generally enable the determination as to whether a withdrawal
is a nonqualified withdrawal or a qualified withdrawal. Nonqualified
withdrawals shall be subject to any penalties imposed under section 529A
of the internal revenue code of 1986, as amended.

8. An account owner may change the designated beneficiary of an
account to another beneficiary only as permitted under section 529A of
the Internal Revenue Code.

9. The program shall provide a separate accounting for each designated

10. An account owner shall be permitted to direct the investment of
any contributions to an account or the earnings thereon no more than two
times in a calendar year.

11. Neither an account owner nor a designated beneficiary may use an
interest in an account as security for a loan. Any pledge of an interest
in an account shall be of no force and effect.

12. The comptroller shall promulgate rules or regulations to prevent
contributions on behalf of a designated beneficiary in excess of an
amount that would cause the aggregate account balance for all accounts
for a designated beneficiary to exceed a maximum account balance, as
established from time to time by the comptroller. Such maximum amount
shall reflect reasonable expenditures and shall be determined in
accordance with any applicable state or federal law, rule, or
regulation. Such maximum amount shall not exceed the federally
authorized level of contribution established for the New York college
choice tuition savings program pursuant to subdivision ten of section
six hundred ninety-five-e of the education law unless otherwise
permitted by law.

13. (a) If there is any distribution from an account to any individual
or for the benefit of any individual during a calendar year, such
distribution shall be reported to the Internal Revenue Service and the
account owner, the designated beneficiary, or the distributee to the
extent required by federal law or regulation.

(b) Statements shall be provided to each account owner at least once
each year within sixty days after the end of the twelve month period to
which they relate. The statement shall identify the contributions made
during a preceding twelve month period, the total contributions made to
the account through the end of the period, the value of the account at
the end of such period, distributions made during such period and any
other information that the comptroller shall require to be reported to
the account owner.

(c) Statements and information relating to accounts shall be prepared
and filed to the extent required by federal and state tax law.

14. The program shall disclose the following information in writing to
each account owner and prospective account owner of a NY ABLE account:

(a) the terms and conditions for purchasing a NY ABLE account;

(b) any restrictions on the substitution of beneficiaries;

(c) the person or entity entitled to terminate the savings agreement;

(d) the period of time during which a beneficiary may receive benefits
under the savings agreement;

(e) the terms and conditions under which money may be wholly or
partially withdrawn from the program, including, but not limited to, any
reasonable charges and fees that may be imposed for withdrawal;

(f) the probable tax consequences associated with contributions to and
distributions from accounts; and

(g) all other rights and obligations pursuant to NY ABLE savings
agreements, including but not limited to the potential impact on means
tested programs, that upon the death of the beneficiary any remaining
balance may be subject to state recovery for Medicaid payments and any
other terms, conditions, and provisions deemed necessary and appropriate
by the commissioner, the advisory council, and the comptroller.

15. NY ABLE savings agreements shall be subject to section fourteen-c
of the banking law and the "truth-in-savings" regulations promulgated

16. Notwithstanding any other provisions of law, rule, or regulation
to the contrary, assets contained in NY ABLE account, that is in
compliance with all applicable state and federal laws, rules, and
regulations, shall not be used in determining the eligibility of a
designated beneficiary for any federal, state, or local means-tested

17. Subject to any outstanding payments due for qualified disability
expenses, upon the death of the designated beneficiary, all amounts
remaining will be subject to state recovery for medical assistance
payments made on behalf of the beneficiary after the date of
establishment of the account.

18. Nothing in this article shall create or be construed to create any
obligation of the comptroller, the state, or any agency or
instrumentality of the state to guarantee for the benefit of any account
owner or designated beneficiary with respect to:

(a) the rate of interest or other return on any account; and

(b) the payment of interest or other return on any account.