Engrossed Committee Substitute
House Bill 2868 History
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H. B. 2868
(By Delegates Hunt, White, Webster, Perdue,
Paxton, Hatfield, Moore, Tabb, Spencer
(Originating in the Committee on Finance)
[March 26, 2009]
A BILL to
amend the Code of West Virginia, 1931, as amended,
by adding thereto a new section, designated §11-21-12i; and
amending said code by adding thereto a new article, designated §44-
16-1, §44-16-2, §44-16-3, §44-16-4, §44-16-5, §44-16-6, §44-16-7,
§44-16-8 and §44-16-9, all relating to the creation and maintenance
of the West Virginia Children With Autism Trust Fund; creating a
tax credit for parents and guardians contributing to a qualified
trust fund against personal income tax obligations; providing for
the limited carryover of unused tax credits; providing for the tax
effects of earnings, proceeds and distributions for qualifying
trust funds; making legislative findings; establishing legislative
purposes; definitions; providing for the creation of trust fund;
establishing eligibility criteria; providing mechanism for
disbursements and maintenance; creating administrative account;
providing for administration through the State Treasurer; providing
for establishment of advisory board; membership of board;
establishing reporting requirements; providing rule-making authority
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §11-21-12i; and to
amend said code by adding thereto a new article, designated §44-16-
1, §44-16-2, §44-16-3, §44-16-4, §44-16-5, §44-16-6, §44-16-7, §44-
16-8 and §44-16-9; all to read as follows:
CHAPTER 11. TAXATION.
PART I. GENERAL.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-12i. Credit for qualifying contribution to a qualified
trust maintained for the benefit of a child with
autism; tax treatment of income accrued and
subsequent withdrawals made from a qualified trust
maintained for the benefit of a child with autism.
(a) Notwithstanding any other provision of this code, in
addition to amounts authorized to be subtracted from federal
adjusted gross income pursuant to this article, any contribution
made by the parent or guardian of a child with autism into a trust
established for the future support of the child, established in
accordance with the provisions of article sixteen, chapter forty-
four of this code, up to a maximum allowable credit of $2,000 per
year, may be offset as a credit against any tax obligation owed to
the state for personal income tax under this article during the
year the contribution was made: Provided, That the amount of the credit taken in a taxable year shall in no event exceed the tax
liability due for the taxable year. In the event that the personal
tax obligation owed to the state for a given tax year is less than
the tax credit allowed by this section, the amount of any unused
credit may be carried forward and applied as an offset against any
future personal income tax obligation owed by that person to the
state in subsequent taxable years, for up to five years. Further,
the accrued deposits and earnings on that account and the
subsequent withdrawal of funds from that trust account, made in
accordance with the provisions of article sixteen, chapter forty-
four of this Code, shall not be treated as taxable income to either
the trust or the beneficiary, for as long as the money is
maintained and distributed in accordance with the provisions of
that same article. The provisions of this section are effective for
taxable years beginning after the thirty-first day of December, two
(b) The Tax Commissioner shall, by issuance of rules
forthwith, provide guidelines to ensure uniform assessment
practices statewide to effect the intent of this section.
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.
ARTICLE 16. PARENT OR GUARDIAN TRUSTS FOR Children With Autism.
This article is known and cited as the "West Virginia Children
with Autism Trust Act".
§44-16-2. Legislative findings and purpose.
(a)The Legislature finds:
(1) Planning for and providing for the anticipated future
needs of a child with autism with severe to moderate impairments in
their daily living will help the children maintain as much
independence as possible and adapt to changing circumstances and
expectations as they become adults.
(2) Parents and guardians of a child with autism provide
critical support for the child, often at a high financial cost, and
are concerned about providing for the child's continued welfare in
the future, when they are no longer able to provide primary care
and support for the child's special needs.
(3) Encouraging the development and setting aside private
resources to address those anticipated special needs would allow
children with autism to remain as self-sufficient as possible,
while continuing to provide them with access to support and
resources as needed, after their parents are no longer able to help
care for them.
(4) Providing tax incentives to encourage savings and
preplanning will promote the development of sufficient financial
resources to meet the future needs of children with autism, and
will ultimately benefit all West Virginia citizens.
(b) The purposes of this Act are as follows:
(1) To create a tax incentive to encourage and assist
individuals and families in saving private funds for the
anticipated future needs of children with autism, to maintain
health, independence and quality of life;
(2) To provide secure private funding to meet the anticipated
needs and support services on behalf of designated beneficiaries
with autism that will supplement, but not supplant, benefits
provided through private insurance, the Medicaid program under XIX
of the Social Security Act, the supplemental security income
program under title XVI of the Social Security Act, the
beneficiary's employment, and other sources;
(3) To provide a support mechanism through the establishment
of a trust that is intended to protect and preserve assets which
have been set aside for the future benefit of a child with autism;
(4) To create a reasonable mechanism to provide for the future
needs of both minors and adults with autism after their parents are
deceased or are otherwise unable to care for the needs of their
For purposes of this article, the following terms have the
meanings ascribed to them, unless the context clearly indicates
(a) "Account" or "Trust Account" means a "Trust Account for a
Child with Autism" established in accordance with the provisions of
(b) "Account owner" means the parent or guardian of a child
with autism who establishes an "Trust Account for a Child with
Autism" with the Treasurer's office and makes payments or
contributions into that account in accordance with the provisions of this article.
(c) "Autism" means a complex developmental disability and
spectrum disorder, whose diagnosis must be clinically confirmed by
qualified physicians and psychiatrists after extensive examination
and testing, defined by a certain set of behaviors and symptoms
which affects a person's ability to communicate and interact with
(d) "Child with Autism" means a child, under the age of
eighteen, who has been clinically diagnosed as having autism to a
degree to which it results in a moderate or severe impairment in
two or more areas of daily living, as the terms "moderate
impairment", "severe impairment" and "daily living" are defined
under Title II or Title XVI of the Social Security Disability Act,
or a child who has been clinically diagnosed with autism and has
been determined to be disabled under either Title II or Title XVI
the Social Security Disability Act for any reason.
(e) "Beneficiary" means the individual designated as a
beneficiary at the time an account is established, and who is the
only individual on whose behalf distributions may be requested and
made from the account. Requests for withdrawals may be requested
by the beneficiary who has reached the age of eighteen, or on
behalf of the beneficiary by his or her appointed guardian in the
event the beneficiary is unable or unwilling to manage
distributions under the terms of the trust account.
(f) "Contribution" means any contribution to a Trust Account
established by a parent or guardian of a child with autism for the future maintenance and support of the autistic child.
(g) "Distribution" means any disbursement from a Trust
Account, made in accordance with the provisions of this article.
(h) "Qualified autism spectrum or disability expenses" means
any expenses which are made for the benefit of an individual with
autism who is a designated beneficiary of the trust, in accordance
with the provisions of this article.
(i) "Treasurer" means the West Virginia state treasurer.
(j) "Trust" means the instrument of trust establishing the
terms and conditions of the Trust Account created in accordance
with the terms of this article.
(k) "Trustee" means the bank, the court-appointed guardian of
the designated beneficiary, or the Treasurer, acting as the
managing trustee of the Trust Account.
§44-16-4. Creation of The Trust Account for a Child with Autism.
(a) Any parent or guardian of a child with autism may
establish a Trust Account for a Child with Autism, to be managed or
maintained for the future benefit of the child, upon the death of
the parent or guardian establishing the trust account, or upon the
child reaching the age of eighteen, whichever comes first. The
account shall be maintained with the Treasurer, and managed by
either the Treasurer, an approved bank or a court appointed
(b) All contributions or other funds placed in said account
shall be managed and invested by the Treasurer, and may be invested
as part of a common trust fund or common investment fund managed by the Treasurer's office.
(c) The governing instrument creating the trust shall meet the
(1) Contributions may be made into the Trust Account by a
parent(s) or guardian establishing the account by cash
(2) Disbursements from the established trust account may only
be made from the account for the purpose of paying qualified
disability expenses of an individual who is a child with autism who
is the designated beneficiary of the trust, and approved pursuant
to legislative rules promulgated under this article.
(3) The following types of expenses, incurred to support the
designated beneficiary after the named beneficiary has reached the
age of eighteen or after the death of the parent or guardian who
established the trust account, shall be treated as qualified
disability expenses if made for the benefit of an individual with
a disability who is a designated beneficiary of the trust:
(A) Education. - Expenses for education, including tuition for
preschool through post-secondary education, books, supplies, and
educational materials related to such education, tutors, and
special education services.
(B) Housing. - Expenses for housing maintained for the
beneficiary, separate and apart from the housing used by the parent
or guardian who established the trust account while the parent or
guardian is still alive, including rent, mortgage payments, home
improvements and modifications, maintenance and repairs, real property taxes, and utility charges.
(C) Transportation. - Expenses for transportation, including
the use of mass transit, the purchase or modification of vehicles
and moving expenses.
(D) Employment support. - Expenses related to obtaining and
maintaining employment, including job-related training, assistive
technology, and personal assistance supports.
(E) Health, prevention and wellness. - Expenses for the health
and wellness, including premiums for health insurance, medical,
vision and dental expenses, habilitation and rehabilitation
services, durable medical equipment, therapy, respite care, long
term services and supports, and nutritional management.
(F) Life necessities. - Expenses for life necessities,
including clothing, activities which are religious, cultural or
recreational, supplies and equipment for personal care, community-
based supports, communication services and devices, adaptive
equipment, assistive technology, personal assistance supports,
financial management and administrative services, expenses for
oversight, monitoring or advocacy, and funeral and burial expenses.
(G) Assistive technology and personal support services. -
Expenses for assistive technology and personal support with respect
to any item described in subparts (A) through (F).
§44-16-5. Establishment and Management of the Trust Account
through the Treasurer; creation and composition of
the trustee advisory board; duties and responsibilities; reimbursement of expenses.
(a) The "The West Virginia Children with Autism Trust Fund" is
established within the accounts held by the State Treasurer for
administration. As used in this section, the phrase "Trust Fund"
shall mean the West Virginia Children with Autism Trust Fund.
(b) In administering and managing these trust accounts, the
Treasurer may utilize the services of a five-person trustee
advisory board, for the purpose of verifying that the trusts in
question are established for qualifying beneficiaries, and to
confirm that the requests for disbursements or distribution of the
funds held in trust are for purposes permitted by the terms of the
trust and this article. The trustee advisory board shall consist
of five persons appointed by the governor, one of whom must be a
licensed therapist with experience in the delivery of vocational,
rehabilitative or support services to persons with disabilities;
one of whom is a physician or psychiatrist who has experience in
diagnosis and treatment of persons with autism; one of whom has a
background in advocacy on behalf of persons with disabilities; and
two citizen members.
(c) Each of the appointments shall be for a period of five
years and are eligible for reappointment at the expiration of their
terms. In the event of a vacancy among appointed members, the
Governor shall appoint a person representing the same interests to
fill the unexpired term.
(d) Members of the board shall serve without compensation.
The Treasurer may pay all expenses, including travel expenses, actually incurred by board members in the conduct of their official
duties. Expense payments are to be made from the administrative
account, and are made at the same rate paid to state employees.
(e) The board shall meet at least twice each month to review
and recommend approval of proposed trusts and the requested
distribution of funds from any trust fund established in accordance
with the provisions of this article. Individuals may appear in
person at those scheduled meetings, or they may participate in such
meetings by videoconference or teleconference.
(f) The Treasurer may provide support staff and office space
for the board.
(g) The "Trust Fund" shall receive all payments from account
owners on behalf of beneficiaries of the Trust Accounts or from any
other source, public or private. Earnings derived from the
investment of moneys in the Trust Fund shall remain in the Trust
Fund held in trust in the same manner as payments, except as
refunded, applied for purposes of the beneficiaries, and applied
for purposes of maintaining and administering the trust.
(h) The corpus, assets and earnings of the West Virginia
Trust Fund do not constitute public funds of the state and are
available solely for carrying out the purposes of this article.
The state has no obligation to any designated beneficiary or any
other person as a result of this article. All amounts payable from
the Trust Fund are limited to amounts available in the Trust Fund.
(i) The Trust Fund shall continue in existence until
terminated by the Legislature as it determines or by the board upon determination that continued operation is infeasible. Upon
termination of the trust and after payment of all fees, charges,
expenses and penalties, the assets of the Trust fund are paid and
distributed to the beneficiaries of the account, to the extent
possible, on a pro rata basis as their interests may appear, and
any assets unused in said account upon the death of a beneficiary
shall revert to the beneficiary's estate.
(j) Nothing in this subsection creates an obligation of state
general revenue funds or requires any level of funding by the
(k) To fulfill the charitable and public purpose of this
article, neither the earnings nor the corpus of the Trust fund is
subject to taxation by the state or any of its political
(l) Notwithstanding any provision of this code to the
contrary, money in a qualified trust fund is exempt from creditor
process and not subject to attachment, garnishment or other
process; is not available as security or collateral for any loan,
or otherwise subject to alienation, sale, transfer, assignment,
pledge, encumbrance or charge; and is not subject to seizure,
taking, appropriation or application by any legal or equitable
process or operation of law to pay any debt or liability of any
account owner, beneficiary or successor in interest.
§44-16-6. Trust fund program administrative account.
(a) There is hereby created a special revenue account within
the state treasurer's office titled the "West Virginia Children with Autism trust fund program administrative account" for the
purposes of receiving and disbursing the sums necessary to
reimburse the treasurer and or members of the trustee advisory
board for the reasonable and necessary expenses which they
respectively incur in implementing, operating and maintaining the
trust funds and program created by this article.
(b) The administrative account shall receive all fees and
charges collected by the board. Expenditures from the fund are
authorized from collections subject to appropriations made by the
§44-16-7. Reports and account; annual audit.
(a) In addition to any other requirements of this article, the
(1) Provide annual summary information on the financial
condition of the fund and statements on the trust funds and savings
plan accounts to the respective account owners;
(2) Prepare, or have prepared, a quarterly report on the
status of the program, including the trust funds and the
administrative account, and provide a copy of the report to the
joint committee on government and finance and the legislative
oversight commission on education accountability; and
(b) All accounts of the board, including the trust funds, are
subject to an annual external audit by an accounting firm, selected
by the board, of which all members or partners assigned to head the
audit are members of the American institute of certified public
accountants. The audit shall comply with the requirements of section thirty-three, article two, chapter five-a of this code.
Any information that would tend to disclose the identity of a
beneficiary, account owner or donor is exempt from the provisions
of chapter twenty-nine-b of this code. Nothing in this section
prohibits disclosure or publication of information in a statistical
or other form which does not identify the individuals involved or
provide personal information. Account owners are permitted access
to their own personal information.
The Treasurer shall propose for promulgation rules necessary
to carry out the provisions of this article pursuant to chapter
twenty-nine of this code.