NCD Letter to IRS regarding ABLE Accounts
December 11, 2018
Charles P. Rettig
Internal Revenue Service
1111 Constitution Avenue N.W.
Washington, D.C. 20224
Dear Commissioner Rettig,
I write on behalf of the National Council on Disability (NCD) – an independent federal agency with the mission to advise the President, Congress and other federal agencies on disability policy issues – to thank you for sending a representative to participate in the October 5th roundtable discussion of federal agency responses to the Achieving a Better Life Experience Act (“ABLE”) Act.
As you may know, NCD has been asked by Congress to serve, “…as an interagency coordinator with respect to the ABLE Act to ensure consistency across federal agencies and programs.” 1 This new charge stems from the fact that participation in state ABLE programs has, overall, been less than expected and this may be partly the result of inconsistent guidance provided to ABLE-eligible individuals and their families from federal agencies that administer needs-based assistance programs. We appreciate your agency’s commitment to working with us to improve the implementation of ABLE by federal agencies across the board and to encouraging people with disabilities and their families to avail themselves of this opportunity to save money to pay for disability-related expenses allowed under the ABLE Act.
The ABLE Act creates tax-free savings accounts for individuals with disabilities, funds in an ABLE account can be used to cover qualified expenses such as education, housing and transportation. These funds are meant to supplement benefits such as Medicaid, supplemental security income and other means-tested programs and therefore are not factored in as an “asset” for purposes of determining eligibility for such means-tested programs. Although ABLE Accounts have the potential to lift individuals out of poverty, participation in state ABLE programs has lagged behind expectations. Although there may be numerous reasons for this, anecdotally we know that some families have been given incorrect or confusing information about whether or not participation in ABLE could threaten their receipt of other critical federal benefits. This presents an opportunity for federal agencies to revisit their efforts to ensure that accurate information is disseminated to frontline staff and that they are making an effort not only to answer questions about ABLE in a meaningful, accurate and appropriate way but also, to the extent possible, that they are proactively getting information out to potentially eligible individuals and their families.
As the ABLE Act is essentially tax legislation, it makes sense that the Internal Revenue Service has been among the most proactive agencies in promulgating regulations and guidance to help people with disabilities and their families understand their rights and responsibilities under the ABLE Act, and to make it easier for states to administer the program. The IRS has taken a number of steps to promote the success of the ABLE Act, including issuing a notice to states in March of 2015 indicating that they should not wait for regulations to move ahead with legislation authorizing state ABLE programs and assuring that individuals with accounts would receive the intended benefits even in the absence of regulations. Then, in June of 2015, the IRS issued proposed regulations2 and further guidance in November of that year3 in response to feedback received from stakeholders. Since that time, IRS has consistently posted accurate information about ABLE on their website to keep the public informed about changes to the law, including when the “Tax Cuts and Jobs Act” went into effect, allowing ABLE eligible individuals and their families to roll over funds from a 529 Plan into an ABLE account and the increase in the amount one can save in an ABLE account. The IRS has clearly been committed to the success of the ABLE Act since the beginning and we look forward to working with you and your agency to increase the number of people who are benefitting from this important program.
NCD conducts quarterly meetings across the country, we will be holding information sessions regarding ABLE at each of these locations in the coming year. We will also gather feedback from stakeholders who have interacted with various federal agencies and bring information about their experiences back to you so that your agency can ensure that policies, procedures and guidance promulgated at the agency level can be calibrated and targeted to ensure that people with disabilities are able to benefit from this exciting opportunity to save money and avoid or lift themselves out of the long-term poverty that is the reality for far too many people with disabilities.4 We look forward to partnering with you in the coming year to make sure that ABLE can achieve the goals that Congress had in mind when they passed this groundbreaking legislation.
Please have your staff respond to Phoebe Ball, NCD Legislative Affairs Specialist, at pball@ncd.gov, as soon as possible to schedule a meeting for December or January with NCD. Thank you in advance.
Respectfully,
Neil Romano
Chairman
1 H.R. Rep No. 115-862 (2018)
2 Guidance Under Section 529A: Qualified ABLE Programs,80 Federal Register 35602 (June 22, 2015).
3 Notice 2015-81
4 See National Council on Disability, National Disability Policy: A Progress Report - October 2017
https://ncd.gov/progressreport/2017/progress-report-october-2017