53-25-112. Selection of financial institution as program manager -- contract -- termination. (1) The department shall implement the operation of the program through the use of one or more financial institutions to act as program manager. Under the program, a person may submit applications for enrollment in the program and participating trust agreements to a program manager and establish accounts in the trust at the location of or through the program manager. Money may be deposited into an account in the trust by paying the money to a program manager, who shall accept the money on behalf of the trust. Accounts may be invested in one or more investment products approved by the department.
(2) The committee shall solicit proposals from financial institutions to act as program managers. Financial institutions that submit proposals shall describe the investment products that they propose to offer through the program.
(3) The committee shall recommend as program manager or program managers the financial institution or institutions from among bidding financial institutions that demonstrate the most advantageous combination, both to potential program participants and to this state, of:
(a) financial stability and integrity;
(b) the safety of the investment products being offered, taking into account any insurance provided with respect to these products;
(c) the ability of the financial institution, directly or through a subcontract, to satisfy recordkeeping and reporting requirements;
(d) the financial institution's plan for promoting the program and the investment that it is willing to make to promote the program. The cost of promotional efforts may not be funded with fees imposed on designated beneficiaries or agents.
(e) the fees, if any, proposed to be charged to persons for maintaining accounts;
(f) the minimum initial deposit and minimum contributions that the financial institution will require and the willingness of the financial institution or its subcontractors to accept contributions through payroll deduction plans and other deposit plans; and
(g) any other benefits to this state or its residents contained in the proposal, including an account opening fee payable to the department by the designated beneficiary to cover operating expenses of the program and any additional fee offered by the financial institution for statewide program marketing by the department.
(4) The department shall consider the committee's recommendations and the factors provided in subsection (3) when selecting program managers.
(5) The department shall enter into a contract with a financial institution to serve as program manager or, pursuant to subsection (6), into contracts with more than one financial institution to serve as program managers. Each contract must provide the terms and conditions by which the financial institution, acting on behalf of the trust, may assist in selling interests in the trust and the manner in which funds of an account that are designated for investment with or through the financial institution will be invested.
(6) The department may select more than one financial institution to serve as program manager. The department may select more than one kind of investment product to be offered through the program. Any decision on the use of multiple financial institutions or multiple investment products must take into account:
(a) the requirements for qualifying as a qualified program under section 529A of the Internal Revenue Code, 26 U.S.C. 529A;
(b) the differing needs of contributors regarding risk and potential return of investment instruments; and
(c) the administrative costs and burdens that may be imposed as the result of the decision.
(7) A program manager or its subcontractor shall:
(a) take action required to keep the program in compliance with its contract or the requirements of this chapter to manage the program so that it is treated as a qualified program under section 529A of the Internal Revenue Code, 26 U.S.C. 529A;
(b) keep adequate records of each account, keep each account segregated from each other account, and provide the department with the information necessary to prepare statements;
(c) if there is more than one program manager, provide the department with the information necessary to help the department determine compliance with rules adopted by the department and to comply with any state or federal tax reporting requirements;
(d) provide representatives of the department, including other contractors or other state agencies, access to the books and records of the program manager to the extent needed to determine compliance with the contract. At least once during the term of any contract, the department, its contractor, or the state agency responsible for examination oversight of the program manager shall conduct an examination to the extent needed to determine compliance with the contract.
(e) hold account funds invested by or through the financial institution in the name of and for the benefit of the trust and the designated beneficiary; and
(f) assist the trustee with respect to any federal or tax filing requirements relating to the program and with respect to any other obligations of the trustee.
(8) A person may not circulate a description of the program, whether in writing or through the use of any media, unless the department or its designee first approves the description.
(9) A contract executed between the department and a financial institution pursuant to this section must be for a term of at least 3 years and not more than 7 years.
(10) If the department determines not to renew the appointment of a financial institution as program manager, the department may take action consistent with the interest of the program and the accounts and in accordance with its duties as trustee of the trust. Except as provided in subsection (11), if a contract executed between the department and a financial institution pursuant to this section is not renewed, at the end of the term of the nonrenewed contract:
(a) accounts previously established through the efforts of the financial institution may not be terminated by the trustee or department and additional contributions may be made to those accounts;
(b) the funds in new accounts established after the termination may not be invested by or through the financial institution unless a new contract is executed;
(c) account funds invested by or through the financial institution must continue to be invested in the financial products in which they were invested prior to the nonrenewal unless the designated beneficiary or agent selects a different investment product; and
(d) the continuing role of the financial institution must be governed by rules or policies established by the department or a special contract and all services provided by the financial institution to accounts continue to be subject to the control of the department as trustee of the trust with responsibility for all accounts in the program.
(11) (a) The department may terminate a contract with a financial institution or prohibit the continued investment of funds by or through a financial institution under subsection (10) at any time for good cause on the recommendation of the committee. If a contract is terminated or an investment is prohibited pursuant to this subsection (11), the trustee shall take custody of account funds or assets held at that financial institution and shall seek to promptly reinvest the funds or assets by or through another financial institution that is selected as a program manager by the department and into the same investment products or into investment products selected by the department that are as similar as possible to the original investments.
(b) Prior to taking the actions described in subsection (11)(a), the department shall give designated beneficiaries and agents notice of the termination and a reasonable period of time, not to exceed 30 days, to voluntarily terminate the account invested by or through the financial institution or to direct that the account be invested with or through another program manager.
(c) If the termination of a program manager causes an emergency that might lead to a loss of funds to any designated beneficiary, the department or trustee may take whatever emergency action is necessary or appropriate to prevent the loss of funds invested pursuant to this chapter. After taking emergency action, the department shall provide notice and opportunity for action to designated beneficiaries as provided in subsection (11)(b).
History: En. Sec. 9, Ch. 436, L. 2015; amd. Sec. 8, Ch. 433, L. 2019.