CHAPTER 67:46:01

GENERAL PROVISIONS

Section

67:46:01:01 Definitions.

67:46:01:02 Eligibility requirements.

67:46:01:03 Eligibility starting date.

67:46:01:04 Repealed.

67:46:01:05 Repealed.

67:46:01:06 Confidential information.

67:46:01:06.01 Release of confidential information.

67:46:01:07 Identification card.

67:46:01:08 Fair hearings.

67:46:01:09 Medical assistance for refugees.

67:46:01:10 Medical assistance for qualified alien.

67:46:01:11 Application for assistance.

67:46:01:12 Social security numbers.

67:46:01:13 Individual to supply required information.

67:46:01:14 Availability of income and resources.

67:46:01:15 Recovery of overpayments.

67:46:01:16 Declaration and documentation of citizenship required.

67:46:01:17 State residency determinations -- General provisions.

67:46:01:18 Residency -- Placement by states in an out-of-state long-term care facility.

67:46:01:19 No specified period of residence required.

67:46:01:20 Incapability of indicating intent.

67:46:01:21 Residency determinations -- Individuals under age 21 residing in long-term care facilities.

67:46:01:22 Residency determinations -- Individuals under age 21 not residing in a long-term care facility.

67:46:01:23 Residency determinations -- Individuals aged 21 and over residing in long-term care facilities -- Capable of indicating intent.

67:46:01:24 Residency determinations -- Individuals aged 21 and over residing in long-term care facilities -- Incapable of indicating intent before age 21.

67:46:01:25 Residency determinations -- Individuals aged 21 and over residing in long-term care facilities -- Incapable of indicating intent after age 21.

67:46:01:26 Residency determinations -- Individuals aged 21 and over not residing in a long-term care facility.

67:46:01:27 Disputed residency cases.

67:46:01:28 Residence determination when individual leaves the state.

67:46:01:01. Definitions. Terms used in this article mean:

(1) "AFDC," the aid to families with dependent children program as it existed on July 16, 1996, under the provisions of article 67:12;

(2) "Applicant," an individual who has filed an application for participation in the medical assistance program;

(3) "Department," the Department of Social Services;

(4) "Medicaid," the program authorized by Title XIX of the Social Security Act, 42 U.S.C. § 1396d, as amended to July 1, 2014, which covers the allowable medical expenses of eligible individuals;

(5) "Medical assistance," "medical services," or "medical assistance program," the Medicaid program authorized by Title XIX of the Social Security Act, 42 U.S.C. § 1396d, as amended to July 1, 2014, and SDCL 28-6 , which provides medical assistance to eligible individuals but does not necessarily include long-term care; assistance provided to children who qualify for the nonmedicaid children's health insurance program covered under the provisions of chapter 67:46:14;

(6) "Qualified alien," a legal alien who arrived in the United States after August 21, 1996, who meets either the requirements of 8 U.S.C. § 1641(b) or 8 U.S.C. § 1613(b)(2), as amended to July 1, 2014;

(7) "Qualified developmental disabilities professional," any person with at least one year of experience working directly with individuals with intellectual disabilities or other developmental disabilities and is either a doctor of medicine or osteopathy, a registered nurse, or a person who holds at least a bachelor's degree in a professional category;

(8) "Recipient," a person who is determined by the department to be eligible for services under this article; and

(9) "SSI," supplemental security income.

Source: Portions of this rule were copied from § 67:16:01:01, effective August 23, 1992; SDR 141, effective March 25, 1993; 20 SDR 92, effective December 21, 1993; 23 SDR 152, effective March 14, 1997; 24 SDR 24, effective August 31, 1997; 26 SDR 168, effective July 1, 2000; 40 SDR 122, effective January 7, 2014; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1 , 42 U.S.C. § 1396d.

Law Implemented: SDCL 28-6-1 , 42 U.S.C. § 1396d.

Cross-Reference: Definition of "qualified developmental disabilities professional," SDCL 27B-1-17(14) , 42 C.F.R. § 483.430.

    67:46:01:02 .  Eligibility requirements. The following individuals are eligible for medical assistance:

    (1)  A parent or other caretaker relative of a dependent child eligible for Medicaid under the provisions of chapter 67:46:12 ;

    (2)  A person who is a recipient of a money payment under the supplemental security income program;

    (3)  A person under age twenty-one who would be a recipient of a money payment under the supplemental security income program if not subject to sub paragraphs (A) and (B) of 42 U.S.C. §  1382(c)(7);

    (4)  A person who is in a hospital or intermediate care facility and would be eligible for a money payment under the supplemental security income program upon leaving the facility;

    (5)  A person under age twenty-one who is in the custody of the department and who meets the income requirements of § 67:46:12:15 ;

    (6)  A person under age twenty-one who meets the income limits of § 67:46:12:15 , is in foster care, and whose financial responsibility has been assumed in full or in part by the department;

    (7)  A person who is eligible under the provisions of chapters 67:46:02 to 67:46:06 , inclusive;

    (8)  A person who is eligible for transitional medical benefits under the provisions of chapter 67:46:13 ;

    (9)  A child in a subsidized adoption;

    (10)  A person who is currently receiving social security, who was entitled to and received social security and supplemental security income concurrently after April 1977, who was terminated from supplemental security income , and who currently would be eligible for supplemental security income if the social security cost of living allowances back to the time of supplemental security income ineligibility are disregarded;

    (11)  A pregnant woman who meets the income requirements under the provisions of chapter 67:46:12 ;

    (12)  A woman who applied for Medicaid while pregnant and who was eligible for and received Medicaid on the date the pregnancy ended. Eligibility continues to the end of the month three hundred and sixty-five days after the pregnancy ends;

    (13)  A child under age nineteen whose family income meets the income requirements under the provisions of chapter 67:46:12 ;

    (14)  A child under age nineteen who is eligible for the non -M edicaid children's health insurance program covered under the provisions of chapter 67:46:14 ;

    (15)   A person determined to be a qualified Medicare beneficiary under the provisions of chapter 67:46:11 , with benefits limited to the part A and B premium, deductible, co-payments, and coinsurance charges;

    (1 6 )  A person determined to be a s pecial l ow- in come Medicare beneficiary under the provisions of chapter 67:46:11 whose income is at least one hundred percent, but less than one hundred and twenty percent of the federal poverty level. Benefits are limited to payment of part B Medicare premiums;

    (1 7 )  A person determined to be a qualified Medicare beneficiary under the provisions of chapter 67:46:11 whose income is at least one hundred and twenty percent, but less than one hundred and thirty-five percent of the federal poverty level, and who is not otherwise eligible for Medicaid. Benefits are limited to payment of part B Medicare premiums. The department may discontinue services provided under the provisions of this chapter if the department exhausts its financial resources for providing the services;

    (1 8 )  A person who is eligible for and is receiving services under the home and community-based services waiver program in chapter 67:44:03 or the home and community-based services program in chapter 67:54:04 , 67:54:06 or 67:54:09 ;

    ( 19 )  A disabled widow or a disabled widower who is at least age fifty but less than age sixty-five , who was terminated from supplemental security income due to receipt of social security benefits under Title II of the Social Security Act, as amended to January 1, 201 6 , who is not on Medicare part A, and who would continue to be eligible for supplemental security income if the Title II benefits are disregarded;

    (2 0 )  A disabled adult who became disabled or blind before age twenty-two and was terminated from supplemental security income due to entitlement to social security benefits as an adult disabled child, but who would continue to be eligible for supplemental security income if the social security benefits are disregarded;

    (2 1 )  A child born to a woman eligible for and receiving Medicaid on the date of the child's birth. Eligibility continues for up to one year as long as the child remains a resident of the state;

    (2 2 )  A child under age twenty-one who is under the jurisdiction of the South Dakota Department of Corrections, is not an inmate of a public institution, does not reside with a parent, and meets the income requirements as established under the provisions of chapter 67:46:12 ;

    (2 3 )  A child under age twenty-six who, on the child's eighteenth birthday, was in foster care under the responsibility of the state;

    (2 4 )  A woman over age twenty-nine and under age sixty-five who was screened for breast and cervical cancer by the Department of Health's All Women Count Program and who is in need of treatment for breast or cervical cancer or a precancerous condition of the breast or cervix, is not covered under creditable coverage, and is not otherwise eligible for medical services ;

    (25)  Coverage from conception to birth when the mother is not eligible for Medicaid under the requirements of § 67:46:01:16 and meets the income limits established in § 67:46:12:11 ;

    (26)  A working individual with a disability who has a net income below two hundred and fifty percent of the federal poverty level and who, except for earned income, meets all criteria for receiving benefits under the supplemental security income program; and

    (27)  A person over age eighteen and under age sixty-five who meets the income requirements in chapter 67:46:12 .

    For purposes of this rule, a qualified alien who arrived in the United States after August 21, 1996, and who meets the eligibility requirements contained in this section must also meet the requirements of § 67:46:01:10 .

    Source: SL 1975, ch 16, § 1; 2 SDR 88, effective July 1, 1976; 4 SDR 35, effective December 22, 1977; 7 SDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 12 SDR 4, effective July 21, 1985; 12 SDR 112, effective January 16, 1986; 13 SDR 193, effective June 22, 1987; 14 SDR 140, effective May 1, 1988; 15 SDR 2, effective July 17, 1988; 15 SDR 171, effective May 15, 1989; 15 SDR 191, effective June 11, 1989; 17 SDR 8, effective July 23, 1990; 17 SDR 53, effective October 16, 1990; 17 SDR 187, effective June 3, 1991; 17 SDR 187, effective June 3, 1991; 17 SDR 200, effective July 1, 1991; transferred from § 67:16:01:02 , effective August 23, 1992; 19 SDR 141, effective March 25, 1993; 20 SDR 92, effective December 21, 1993; 21 SDR 67, effective October 13, 1994; 21 SDR 162, effective March 23, 1995; 22 SDR 32, effective September 11, 1995; 23 SDR 152, effective March 14, 1997; 24 SDR 24, effective August 31, 1997; 24 SDR 104, effective January 29, 1998; 25 SDR 13, effective August 9, 1998; 26 SDR 168, effective July 1, 2000; 29 SDR 84, effective November 22, 2002; 30 SDR 193, effective June 13, 2004; 36 SDR 215, effective July 1, 2010; 41 SDR 7, effective July 29, 2014; 41 SDR 93, effective December 3, 2014 ; 43 SDR 31, effective September 12, 2016; 49 SDR 125, effective July 3, 2023 .

    General Authority: SDCL 28-6-1 .

    Law Implemented: SDCL 28-6-1 (6).

    Cross-References:

    Federal poverty level, § 67:11:01:03 .

    Subsidized adoption regulations, ch apter 67:14:14 .

    Declaration and documentation of citizenship required, §  67:46:01:16 .

    Income limit -- Pregnant woman, §  67:46:12:11 .

    Deemed newborn children , 42 C.F.R. § 435.117.

    Institutionalized individuals, 42 C.F.R. § 435.1009.

    Definitions relating to institutional status, 42 C.F.R. § 435.1010.

    Group care centers for minors, ch apter 67:42:07 .

    Residential treatment centers, ch apter 67:42:08 .

    State option of Medicaid coverage for adolescents leaving foster care, 113 Stat. 1829.

    John H. Chafee foster care independence program, 113 Stat. 1824.

    State option of Medicaid coverage for adolescents leaving foster care, 42 U.S.C. § 1396a(a)(10)(A)(ii)(XVII).

    State option of Medicaid coverage for certain breast or cervical cancer patients, 42 U.S.C. § 1396a(a)(10)(A)(ii)(XVIII).

    Prohibition of preexisting condition exclusions or other discrimination based on health status, 42 U.S.C. § 300gg-3(c).

    State option of working individuals with disabilities, 42 U . S .C. §  1396a(a)( 10 )(A)(ii)(XIII) (July 1, 2016).

67:46:01:03. Eligibility starting date. Unless otherwise specified, eligibility for medical assistance begins with the first day of the month the department receives the application if the applicant meets all the requirements for assistance. Unless otherwise specified, medical assistance may also begin as early as the first day of the third month immediately before the month the department received the application if the individual received Medicaid services during this period and would have been eligible to receive medical assistance if the individual had applied at the time the services were received.

Source: Copied from § 67:16:01:03, effective August 23, 1992; 25 SDR 13, effective August 9, 1998; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1(6).

Law Implemented: SDCL 28-6-1(6).

Cross-Reference: Long-term care residency requirement and beginning of eligibility, § 67:46:03:03.

67:46:01:04. Choosing a provider. Repealed.

Source: Copied from § 67:16:01:04, effective August 23, 1992; repealed, 41 SDR 93, effective December 3, 2014.

67:46:01:05. Payment of Medicare buy-in premiums. Repealed.

Source: Copied from § 67:16:01:06, effective August 23, 1992; 19 SDR 141, effective March 25, 1993; repealed, 41 SDR 93, effective December 3, 2014.

67:46:01:06. Confidential information. Information in the department's possession that concerns an applicant or recipient is considered confidential and its use is limited to purposes directly related to the administration of the medical services program. The following uses or purposes are considered to be directly related to the administration of the medical services program:

(1) Establishing eligibility for the medical services program;

(2) Determining the amount of medical assistance;

(3) Providing services to or on behalf of an eligible individual; or

(4) Conducting or assisting in an investigation, prosecution, or civil or criminal proceeding relating to the administration of the medical assistance program.

Source: Copied from § 67:16:01:12, effective August 23, 1992; 35 SDR 166, effective December 24, 2008.

General Authority: SDCL 28-1-32.

Law Implemented: SDCL 28-1-29 , 28-1-32.

67:46:01:06.01. Release of confidential information. An individual or entity outside the department requesting confidential information about an applicant or recipient must make the request in writing. The information being requested must be for one of the purposes listed in § 67:46:01:06.

Before the department releases the requested information, the applicant or recipient or the applicant's or recipient's parent or guardian, as applicable, must complete and sign the department's form authorizing the release of the requested information. The department must have the original, completed, and signed form in its possession before it releases the information to the requesting individual or entity.

Information the department receives from a source other than the applicant or recipient or the applicant's or recipient's parent or guardian, as applicable, may not be disclosed even if a signed authorization for the requested information is provided to the department.

Federal agencies that oversee the department's medical assistance program, other federally-funded, state-administered public assistance programs, and other state-administered programs that have a data use agreement with the department that allows the exchange of information for purposes of administering the medical assistance program or for verifying income, eligibility, and the amount of assistance for its applicants and recipients are exempt from the provisions of this rule.

Source: 35 SDR 166, effective December 24, 2008.

General Authority: SDCL 28-1-32.

Law Implemented: SDCL 28-1-32.

67:46:01:07. Identification card. The department shall issue an identification card to an individual eligible for medical services under this article. The individual must show this identification card to the medical provider when requesting service.

Source: Copied from § 67:16:01:13, effective August 23, 1992; 24 SDR 11, effective August 4, 1997.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:01:08. Fair hearings. Providers, applicants, and recipients shall be entitled to fair hearings in accordance with the provisions of SDCL 28-6-6 and chapter 67:17:02.

Source: Copied from § 67:16:01:17, effective August 23, 1992; 21 SDR 162, effective March 23, 1995.

General Authority: SDCL 28-6-6.

Law Implemented: SDCL 28-6-6.

67:46:01:09. Medical assistance for refugees. Medical assistance must be provided to refugees who are eligible for assistance under chapter 67: 46 :1 5 .

Source: 2 SDR 10, effective August 12, 1975; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 11, effective August 13, 1981; transferred from § 67:16:01:20, effective August 23, 1992 ; 47 SDR 24, effective September 10, 2020 .

General Authority: SDCL 28-6-1 (1)(4)(6) .

Law Implemented: SDCL 28-6-1 (1)(4)(6) .

Cross-Reference: Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 115.

67:46:01:10. Medical assistance for qualified alien. A qualified alien is ineligible for assistance under this article for five years unless the alien meets the requirements contained in Pub. L. No. 104-193, § 402(b)(2) (110 Stat. 2264) (August 22, 1996). The five-year period begins with the date the alien entered the United States.

Source: 23 SDR 152, effective March 14, 1997; 24 SDR 24, effective August 31, 1997.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Limited eligibility for designated federal programs, Pub. L. No. 104-93, § 402(b) (110 Stat. 2264) (August 22, 1996).

67:46:01:11. Application for assistance. Except for those individuals covered under subdivisions 67:46:01:02(2), (3), (8), (12), (22), or (24), an individual desiring medical assistance under this article or someone acting on the individual's behalf, must submit a completed and signed application for assistance to the department.

Source: 24 SDR 24, effective August 31, 1997; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Written application, 42 C.F.R. 435.907 (September 23, 1994).

67:46:01:12. Social security numbers. As a condition of eligibility, each applicant for assistance must furnish the department with the applicant's social security number.

Source: 24 SDR 24, effective August 31, 1997.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:01:13. Individual to supply required information. As a condition of eligibility, an individual applying for or receiving assistance under this article must provide the department with the necessary verification to establish initial or continuing eligibility or information necessary for quality control efforts. The individual must also cooperate with the department in establishing the paternity of an applicant or recipient child and in obtaining medical support and medical payments unless the individual establishes good cause for not cooperating. Failure or refusal to cooperate or supply the necessary information results in the denial of an application or the termination of current benefits.

A pregnant woman is exempt from this section with regard to establishing paternity for a child conceived out of wedlock who has yet to be born.

Good cause is established following the provisions of §§ 67:10:01:26 through 67:10:01:34, inclusive.

Source: 24 SDR 24, effective August 31, 1997; 34 SDR 322, effective July 1, 2008; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Acceptance of assistance as assignment and subrogation of support rights and insurance proceeds -- Liability of insurer or attorney, SDCL 28-6-7.1.

67:46:01:14. Availability of income and resources. An individual applying for or receiving medical assistance must take advantage of all income and resources to which the individual is entitled, including items such as social security, SSI, unemployment compensation, income and resources available under the terms of a trust, veterans' benefits, insurance policies, and contractual agreements. Failure or refusal by the individual to take the necessary action to take advantage of the income and resources makes the individual ineligible for medical assistance.

Source: 30 SDR 193, effective June 13, 2004.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:01:15. Recovery of overpayments. If medical assistance is paid on behalf of an individual and the department subsequently finds that the individual was ineligible for the medical assistance benefits paid, the department considers that the medical benefit was paid in error. A benefit paid in error constitutes a debt to and is subject to recovery from the individual by the department according to the limits of chapter 67:48:01.

Source: 30 SDR 193, effective June 13, 2004.

General Authority: SDCL 28-6-1(4).

Law Implemented: SDCL 28-6-1(4).

Cross-Reference: Recoveries and investigations, art 67:48.

67:46:01:16. Declaration and documentation of citizenship required. An applicant or recipient must declare his or her citizenship or alien status. An applicant or recipient who declares that he or she is a citizen or national of the United States must present to the department documentary evidence of citizenship or nationality as specified in 42 U.S.C. § 1396b(x), as amended to July 1, 2014.

Source: 33 SDR 44, effective August 31, 2006; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:01:17. State residency determinations -- General provisions. An applicant or recipient must be a resident of the state of South Dakota to be eligible for long-term care assistance. An individual's state of residence shall be determined according to the following:

(1) If the individual has been placed by a state agency into an out-of-state institution, the state arranging or actually making the placement is the individual's state of residence;

(2) If the individual is competent and leaves the facility into which the individual had been placed by a state, that individual's state of residence is the state in which the individual is physically located;

(3) If a placement is initiated by a state because that state lacks a sufficient number of appropriate facilities to provide services to its residents, the state making the placement is the individual's state of residence;

(4) If the individual is receiving a state supplementary payment, the state making the supplementary payment is the individual's state of residence;

(5) If the individual is receiving federal payments for foster care and adoption assistance under Title IV-E of the Social Security Act, the state making the payment is the individual's state of residence.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 10 SDR 39, effective November 1, 1983; 11 SDR 86, effective December 30, 1984; transferred from § 67:16:18:04, effective August 23, 1992; transferred from § 67:46:03:04, 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Incapability of indicating intent, § 67:46:01:20.

67:46:01:18. Residency -- Placement by states in an out-of-state long-term care facility. If a state arranges for an individual to be placed in a long-term care facility located in another state, the state making the placement is the individual's state of residence, regardless of the individual's intent or ability to indicate intent.

If an individual capable of indicating intent leaves the facility into which the individual has been placed by a state, the individual's state of residence is the state where the individual is physically located.

Any action beyond providing information to the individual and the individual's family constitutes arranging or making a state placement. Providing basic information about facilities available in another state or assisting an individual to locate an institution in another state, provided the individual is capable of indicating intent and independently decides to move, is not considered state placement.

Source: 8 SDR 170, effective June 21, 1982; 11 SDR 86, effective December 30, 1984; transferred from § 67:16:18:04.01, effective August 23, 1992; transferred from § 67:46:03:05, 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Placement by a State in an out-of-State institution, 42 C.F.R. § 435.403(e) (July 12, 2006).

67:46:01:19. No specified period of residence required. The department shall not deny long-term care assistance to an eligible individual in a long-term care facility who has not resided in South Dakota for a specified period or who did not establish residence in South Dakota before entering the long-term care facility.

Source: 8 SDR 170, effective June 21, 1982; transferred from § 67:16:18:04.02, effective August 23, 1992; transferred from § 67:46:03:06, 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:01:20. Incapability of indicating intent. The department shall consider an individual incapable of indicating intent if the individual meets one of the following:

(1) The individual has been judged legally incompetent by a court;

(2) A physician, psychologist, or a qualified developmental disability professional has found the individual to be incapable of indicating intent and has based this finding on medical evidence; or

(3) A psychologist has determined that the individual has an IQ of 49 or less or a mental age of 7 or less and has based this determination on tests appropriate for the individual being tested.

Source: 10 SDR 39, effective November 1, 1983; transferred from § 67:16:18:04.03, effective August 23, 1992; 40 SDR 122, effective January 8, 2014; transferred from § 67:46:03:07, 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References: State residence -- Individual considered incapable of indicating intent, 42 C.F.R. § 435.403(c) (July 12, 2006).

67:46:01:21. Residency determinations -- Individuals under age 21 residing in long-term care facilities. The state of residence for an individual under age 21 who is residing in a long-term care facility shall be determined according to the following:

(1) If the individual is emancipated from the individual's parents or if the individual is married and capable of indicating intent, the state where the individual is living with the intention to remain permanently or for an indefinite period is the individual's state of residence;

(2) If the individual is neither married nor emancipated, the state of residence may be determined by one of the following:

(a) The state of residence is that of the parent's state of residence at the time of placement;

(b) The state of residence is that of the parent who filed the application provided the individual is institutionalized in the parent's state of residence;

(c) If parental rights have been terminated and a legal guardian has been appointed, the state of residence is that of the guardian's state of residence at the time of placement; or

(d) If parental rights have been terminated and a legal guardian has been appointed, the state of residence is that of the guardian who files the application provided the individual is institutionalized in the guardian's state of residence.

(3) If the individual has been abandoned by the individual's parents and does not have a legal guardian, the individual's state of residence is the state of residence of the person filing the application.

Source: 11 SDR 86, effective December 30, 1984; transferred from § 67:16:18:04.04, effective August 23, 1992; transferred from § 67:46:03:08, 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: State residence -- Individuals under age 21, 42 C.F.R. § 435.403(h) (July 12, 2006).

67:46:01:22. Residency determinations -- Individuals under age 21 not residing in a long-term care facility. The state of residence for individuals under age 21 who are not residing in a long-term care facility is one of the following:

(1) For an individual who is emancipated from the individual's parents or married and who is capable of indicating intent, the state of residence is the state where the individual is living and

(a) Intends to reside, including without a fixed address; or

(b) Has entered the state with a job commitment or seeking employment, whether or not currently employed;

(2) For any other individual, the state of residence is:

(a) The state where the individual resides, including without a fixed address; or

(b) The state of residency of the parent or caretaker, with whom the individual reside, and where the parent or caretaker is living; and

(i) Intends to reside, including without a fixed address; or

(ii) Has entered the State with a job commitment or seeking employment, whether or not currently employed.

Source: 11 SDR 86, effective December 30, 1984; transferred from § 67:16:18:04.05, effective August 23, 1992; 41 SDR 7, effective July 29, 2014; transferred from § 67:46:03:09, 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Assistance applications and eligibility, chapter 67:12:01; State residence, 42 C.F.R. 435.403(h) (July 12, 2006).

67:46:01:23. Residency determinations -- Individuals aged 21 and over residing in long-term care facilities -- Capable of indicating intent. For a long-term care applicant or recipient aged 21 or over capable of indicating intent, the state of residence is the state where the individual is living with the intention to remain there permanently or for an indefinite period.

Source: 11 SDR 86, effective December 30, 1984; transferred from § 67:16:18:04.06, effective August 23, 1992; transferred from § 67:46:03:10, 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: State residence -- Individuals age 21 and over, 42 C.F.R. § 435.403(i) (July 12, 2006).

67:46:01:24. Residency determinations -- Individuals aged 21 and over residing in long-term care facilities -- Incapable of indicating intent before age 21. For a long-term care individual aged 21 or over who became incapable of indicating intent before age 21, the state of residence is one of the following:

(1) If the individual is neither married nor emancipated, the state of residence may be determined by one of the following:

(a) The state of residence is that of the parent's state of residence at the time of placement;

(b) The state of residence is that of the parent who files the application provided the individual is institutionalized in the parent's state of residence;

(c) If parental rights have been terminated and a legal guardian has been appointed, the state of residence is that of the guardian's state of residence at the time of placement; or

(d) If parental rights have been terminated and a legal guardian has been appointed, the state of residence is that of the guardian who files the application provided the individual is institutionalized in the guardian's state of residence;

(2) That of the person filing the application if the individual has been abandoned by the individual's parent, does not have a legal guardian, and is residing in long-term care in that state.

Source: 11 SDR 86, effective December 30, 1984; transferred from § 67:16:18:04.07, effective August 23, 1992; transferred from § 67:46:03:11, 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: State residence -- Individuals age 21 and over, 42 C.F.R. § 435.403(i) (July 12, 2006).

67:46:01:25. Residency determinations -- Individuals aged 21 and over residing in long-term care facilities -- Incapable of indicating intent after age 21. For a long-term care applicant or recipient who became incapable of indicating intent after age 20, the state of residence is the state in which the individual is physically present unless another state makes the placement.

Source: 11 SDR 86, effective December 30, 1984; transferred from § 67:16:18:04.08, effective August 23, 1992; transferred from § 67:46:03:12, 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Residency -- Placement by states in an out-of-state long-term care facility, § 67:46:01:18; State residence -- Individuals age 21 and over, 42 C.F.R. § 435.403(i) (July 12, 2006).

67:46:01:26. Residency determinations -- Individuals aged 21 and over not residing in a long-term care facility. The state of residence for individuals aged 21 and over who are not residing in a long-term care facility is one of the following:

(1) The state where the individual is living and

(a) intends to reside, including without a fixed address; or

(b) has entered the state with a job commitment or seeking employment, whether or not currently employed;

(2) The state where the individual is living if the individual is incapable of stating intent for residency.

Source: 11 SDR 86, effective December 30, 1984; transferred from § 67:16:18:04.09, effective August 23, 1992; 41 SDR 7, effective July 29, 2014; transferred from § 67:46:03:13, 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: State residence, 42 C.F.R. 435.403(i) (July 12, 2006).

67:46:01:27. Disputed residency cases. If two states dispute an individual's state of residence and the dispute cannot be resolved according to §§ 67:46:01:17 to 67:46:01:26, inclusive, the state where the individual is physically located is the state of residence.

Source: 11 SDR 86, effective December 30, 1984; transferred from § 67:16:18:04.10, effective August 23, 1992; transferred from § 67:46:03:14, 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:01:28. Residence determination when individual leaves the state. The South Dakota residency requirement for an applicant or recipient of long-term care assistance, in case of temporary leave from the state, shall be determined according to the following guidelines:

(1) An individual who leaves the state by choice without a declared intent to return is not considered a resident of this state for the purpose of determining eligibility for long-term care assistance;

(2) Assistance from South Dakota shall be terminated when a recipient meets the residence requirements for long-term care assistance in another state;

(3) When an individual lives in another state and declares an intention to make that state the individual's home, the department shall request the individual to contact the other state agency and apply for long-term care assistance. When the individual declares an intention to make another state the individual's home, long-term care assistance from South Dakota shall be discontinued; and

(4) An individual who receives any form of long-term care assistance from another state is not entitled to long-term care assistance from South Dakota in any month such assistance is received from the other state whether or not the individual is physically present in South Dakota.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 10 SDR 39, effective November 1, 1983; transferred from § 67:16:18:05, effective August 23, 1992; transferred from § 67:46:03:15, 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Incapability of indicating intent, § 67:46:01:20.

CHAPTER 67:46:02

APPLICATION FOR LONG-TERM CARE

Section

67:46:02:01 Definitions.

67:46:02:02 Signed application required.

67:46:02:03 Determining eligibility.

67:46:02:04 Prompt determinations.

67:46:02:05 Application of time standard.

67:46:02:06 Case record to contain facts.

67:46:02:07 Informing applicant.

67:46:02:08 Review of continuing eligibility.

67:46:02:09 Reporting change of circumstances.

67:46:02:10 Prompt action for continuing eligibility.

67:46:02:01. Definitions. Terms used in this chapter mean:

(1) "Long-term care," continuing 24-hour service in a medical, nursing, or intermediate care facility, assisted living facility, or adult foster home; participation in the home and community-based service programs under chapters 67:44:03 and 67:54:04; and

(2) "Application," the action by which an individual completes the department's application form for long-term care assistance or medical assistance. An application is not an inquiry, which is simply a request for information about eligibility requirements for long-term care assistance or medical assistance. An inquiry may be followed by an application.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 10 SDR 79, effective February 1, 1984; transferred from § 67:16:17:01, effective August 23, 1992; 20 SDR 92, effective December 21, 1993; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:02:02. Signed application required. The applicant shall personally sign an application, and the department shall verify the application in accordance with § 67:46:02:03. If the applicant is incompetent, incapacitated, or deceased, an authorized representative may sign the application on the applicant's behalf. The applicant may be assisted by an individual of the applicant's choice or someone acting in a legal capacity for the applicant in the various aspects of the application or in contacts with the department.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:17:02, effective August 23, 1992.

General Authority: SDCL 28-6-1 , 28-6-5.

Law Implemented: SDCL 28-6-1 , 28-6-5.

67:46:02:03. Determining eligibility. Initial and continuing eligibility for long-term care assistance shall be determined by the department on the basis of statements submitted by the applicant or recipient of long-term care assistance about the facts that are within the applicant's or recipient's knowledge and competence. Verification through contacts is required for selected items, including family composition, resources, and income.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; transferred from § 67:16:17:03, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:02:04. Prompt determinations. The notification of approval or denial of long-term care assistance shall be mailed to the applicant within 45 days after the date of application.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:17:04, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1 , 28-6-5.

67:46:02:05. Application of time standard. The time standard set by § 67:46:02:04 applies except in unusual circumstances, including a failure or delay on the part of an examining physician to provide necessary information or an emergency beyond the department's control causing a delay in a decision by the department. Case records must be fully documented to show the cause of the delay in all instances when delay occurs. The department's time standard for acting on applications or continuing eligibility may not be used as a waiting period before granting or denying benefits.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from §67:16:17:05, effective August 23, 1992; 20 SDR 92, effective December 21, 1993.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1 , 28-6-5.

67:46:02:06. Case record to contain facts. If the applicant voluntarily withdraws an application, the department shall send a notice to the applicant to confirm the withdrawal and shall enter the action in the case record. If the applicant dies or cannot be located, the department shall file the application without action and enter a notation in the case record. In all other cases, the applicant's or recipient's case record shall contain supportive facts for each decision relating to approval or denial of eligibility.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:17:06, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:02:07. Informing applicant. Applicants shall be informed about eligibility requirements and conditions, coverage, scope of program, related services available, the rights and responsibilities of the applicant or recipient, and the department's time standard in acting on applications. This information shall be given in writing or orally as appropriate.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; transferred from § 67:16:17:07, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:02:08. Review of continuing eligibility. The department shall redetermine continuing eligibility for long-term care and medical assistance at least once every 12 months.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:17:09, effective August 23, 1992; 20 SDR 92, effective December 21, 1993; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Periodic redeterminations of Medicaid eligibility, 42 C.F.R. 435.916 (March 23, 2012).

67:46:02:09. Reporting change of circumstances. Any change in circumstances affecting an individual's eligibility shall be reported by the recipient to the department within 30 days of the date the change occurred.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; transferred from § 67:16:17:10, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:02:10. Prompt action for continuing eligibility. Upon receipt of information which affects continued eligibility for long-term care assistance, a redetermination of eligibility shall be made within 30 days. The recipient may be assisted by an individual of the recipient's choice in the various aspects of the redetermination of eligibility.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:17:11, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

CHAPTER 67:46:03

LONG-TERM CARE ELIGIBILITY

Section

67:46:03:01 Responsibility for information.

67:46:03:02 Aged, blind, or disabled.

67:46:03:03 Long-term care residency requirement and beginning of eligibility.

67:46:03:04 Transferred.

67:46:03:05 Transferred.

67:46:03:06 Transferred.

67:46:03:07 Transferred.

67:46:03:08 Transferred.

67:46:03:09 Transferred.

67:46:03:10 Transferred.

67:46:03:11 Transferred.

67:46:03:12 Transferred.

67:46:03:13 Transferred.

67:46:03:14 Transferred.

67:46:03:15 Transferred.

67:46:03:16 Repealed.

67:46:03:17 Repealed.

67:46:03:18 Determination of disability.

67:46:03:19 Determination of blindness.

67:46:03:20 Cessation of determination of blindness.

67:46:03:21 Cessation of disability.

67:46:03:22 Release of medical information.

67:46:03:23 Payment for examinations.

67:46:03:24 Repealed.

67:46:03:01. Responsibility for information. The applicant or recipient of long-term care shall have the primary responsibility of furnishing the department information necessary to determine eligibility or ineligibility for long-term care assistance. Failure of the applicant or recipient to furnish the necessary information may result in the rejection or termination of long-term care assistance.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:18:01, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1 , 28-6-5.

67:46:03:02. Aged, blind, or disabled. Long-term care assistance shall be provided to an eligible aged, blind, or disabled applicant or recipient meeting one of the following:

(1) The individual is at least 65 years of age at the time of application;

(2) The individual has a central visual acuity of 20/200 or less in the better eye with the use of a correcting lens;

(3) The individual has limited vision: the widest diameter of the visual field subtends an angle no greater than 20 degrees;

(4) The individual is unable to engage in substantial gainful activity because of a physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least 12 months; or

(5) The individual is a child under 18 years of age who is unable to engage in substantial gainful activity because of a mental or physical impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least 12 months.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:18:02, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:03:03. Long-term care residency requirement and beginning of eligibility. The department shall approve long-term care assistance or medical services for an eligible individual if the individual is participating in a home and community-based service program or resides in one of the following facilities:

(1) A licensed hospital, nursing facility, intermediate care facility, or assisted living facility that has a Medicaid provider agreement with the department for the level of care and services provided; or

(2) An adult foster care facility licensed by the South Dakota Department of Health.

If an eligible individual's income minus $20 is less than the SSI standard, long-term care assistance or medical assistance begins in the month the person enters the facility, subject to § 67:46:01:03.

If an eligible individual's income minus $20 is greater than the SSI standard but does not exceed 300 percent of the SSI standard, long-term care assistance or medical assistance begins the first day of a 30-consecutive-day period of institutionalization, subject to § 67:46:01:03. The 30-consecutive-day period is met if the requirements of this rule are met and the individual dies before the 30 th consecutive day.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 10 SDR 79, effective February 1, 1984; 15 SDR 2, effective July 17, 1988; transferred from § 67:16:18:03, effective August 23, 1992; 19 SDR 141, effective March 25, 1993; 20 SDR 92, effective December 21, 1993; 30 SDR 193, effective June 13, 2004.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References:

Home and community-based services, ch 67:54:04.

Home and community-based waiver services, ch 67:44:03.

SSI standard benefit amount, subdivision 67:46:04:13(2).

67:46:03:04. Transferred to § 67:46:01:17.

67:46:03:05. Transferred to § 67:46:01:18.

67:46:03:06. Transferred to § 67:46:01:19.

67:46:03:07. Transferred to § 67:46:01:20.

67:46:03:08. Transferred to § 67:46:01:21.

67:46:03:09. Transferred to § 67:46:01:22.

67:46:03:10. Transferred to § 67:46:01:23.

67:46:03:11. Transferred to § 67:46:01:24.

67:46:03:12. Transferred to § 67:46:01:25.

67:46:03:13. Transferred to § 67:46:01:26.

67:46:03:14. Transferred to § 67:46:01:27.

67:46:03:15. Transferred to § 67:46:01:28.

67:46:03:16. Citizenship and alienage. Repealed.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:18:06, effective August 23, 1992; 20 SDR 92, effective December 21, 1993; 23 SDR 152, effective March 14, 1997; repealed, 24 SDR 24, effective August 31, 1997.

67:46:03:17. Social security numbers. Repealed.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 12 SDR 6, effective July 28, 1985; transferred from § 67:16:18:07, effective August 23, 1992; repealed, 24 SDR 24, effective August 31, 1997.

67:46:03:18. Determination of disability. The disability/incapacity consultation team shall determine disability following the guidelines for the SSI program provided in 42 U.S.C. §§ 1382c(a)(3)(A) to 1382c(a)(3)(C), inclusive, as of July 1, 2014, based on medical evidence supplemented by a social history. Medical evidence may be a physician's report, a copy of the physician's records, or the findings of a physical examination completed for this purpose. An individual who is receiving social security or SSI disability benefits meets the long-term care assistance disability requirements.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 18 SDR 67, effective October 13, 1991; transferred from § 67:16:18:08, effective August 23, 1992; 21 SDR 162, effective March 23, 1995; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:03:19. Determination of blindness. Blindness, according to § 67:46:03:02, shall be determined by an ophthalmologist designated by the department. Based on an ophthalmologist's or optometrist's report and evaluation, the ophthalmologist shall determine whether the disability requires long-term care. If the individual is receiving social security disability benefits or SSI benefits based on blindness, the individual is considered to meet the blindness requirements for long-term care assistance.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:18:09, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:03:20 Cessation of determination of blindness. An individual shall be ineligible for long-term care assistance when either of the following occurs:

(1) The individual has applied for and has been denied social security disability or SSI benefits based on blindness; or

(2) The department has determined that the blindness does not require long-term care.

If an individual is ineligible based on subdivision (1), the department may not overrule the decision.

Source: 8 SDR 170, effective June 21, 1982; transferred from § 67:16:18:09.01, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Determination of blindness, § 67:46:03:19.

67:46:03:21. Cessation of disability. An individual is ineligible for long-term care assistance when either of the following occurs:

(1) The disability/incapacity consultation team, following §67:46:03:18, inclusive, determines that a disability ceases to exist; or

(2) The individual has been denied social security or SSI disability benefits based on a disability.

If an individual is ineligible based on subdivision (2) of this section, the department may not overrule the decision.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 18 SDR 67, effective October 13, 1991; transferred from § 67:16:18:10, effective August 23, 1992; 21 SDR 162, effective March 23, 1995.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:03:22. Release of medical information. No medical information may be obtained unless the department secures the applicant's written consent. Refusal to sign an authorization for the release of this information shall make the applicant ineligible for long-term care assistance.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:18:11, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:03:23. Payment for examinations. Physical examinations requested by the department for the purpose of determining an applicant's or recipient's eligibility and level of care shall be paid for by the department in accordance with §§ 67:16:01:09 and 67:16:01:11. The applicant or recipient shall obtain written authorization for the examination from the department and shall present the authorization to the person conducting the examination.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:18:12, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:03:24. Absence of regulations regarding conditions of eligibility. Repealed.

Source: 8 SDR 170, effective June 21, 1982; transferred from § 67:16:18:15, effective August 23, 1992; repealed, 41 SDR 93, effective December 3, 2014.

CHAPTER 67:46:04

LONG-TERM CARE INCOME REQUIREMENTS

Section

67:46:04:01 Scope of chapter.

67:46:04:02 Definitions.

67:46:04:03 Items not considered income when determining eligibility for long-term care or medical assistance.

67:46:04:04 Income from other benefit programs -- Overpayments.

67:46:04:05 Repealed.

67:46:04:06 Income considered in month received.

67:46:04:07 Repealed.

67:46:04:08 Income before application.

67:46:04:09 Repealed.

67:46:04:10 Income considered.

67:46:04:11 Repealed.

67:46:04:12 Repealed.

67:46:04:13 Department to refer certain individuals to Social Security Administration to apply for supplemental security income .

67:46:04:14 Ineligibility when income exceeds three hundred percent of maximum supplemental security income standard.

67:46:04:15 Ineligibility when income exceeds monthly care rates for assisted living or adult foster care.

67:46:04:16 Income from trust.

67:46:04:17 Repealed.

67:46:04:18 Repealed .

67:46:04:19 Repealed .

67:46:04:20 Absence of an income regulation.

67:46:04:01. Scope of chapter. The rules contained in this chapter are used to determine if an individual is financially eligible, based on the individual's current month's income, to receive long-term care assistance or medical assistance from the department.

Source: 9 SDR 133, effective April 27, 1983; transferred from § 67:16:19:00, effective August 23, 1992; 20 SDR 92, effective December 21, 1993.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:04:02. Definitions. Terms used in this chapter mean:

(1) "Assets," the income and resources of an individual and the individual's spouse, including any income or resource which the individual or the individual's spouse is entitled to receive but does not because of some action or inaction on the part of any of the individuals listed in § 67:46:05:32.01;

(2) "Income," unless specifically excluded in § 67:46:04:03, any money or in-kind payments before deductions;

(3) "Irregular income," income received no more than once a calendar quarter from each income source; and

(4) "Regular income," income received more than once a calendar quarter from the same source and at a relatively fixed amount.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR 11, effective August 1, 1982; 9 SDR 133, effective April 27, 1983; transferred from § 67:16:19:01, effective August 23, 1992; 21 SDR 162, effective March 23, 1995.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References: Third-party liability, ch 67:16:26; Income from other benefit programs -- Overpayments, § 67:46:04:04.

67:46:04:03. Items not considered income when determining eligibility for long-term care or medical assistance. The following are not considered income when determining eligibility for long-term care or medical assistance:

(1) Third-party payments to medical providers;

(2) County welfare payments to medical providers;

(3) Money paid by a school district for educational purposes;

(4) Income tax or sales tax refunds;

(5) Unearned irregular income from all sources which totals $20 or less per month;

(6) The following payments from the Veterans' Administration:

(a) The $90 reduced pension benefit for single veterans or surviving spouses of veterans in nursing facilities who are Medicaid recipients;

(b) Aid and attendance allowance;

(c) The clothing allowance for veterans with a service-connected disability for which the veteran uses a prosthetic or orthopedic appliance;

(d) Educational assistance;

(e) A payment adjustment for unusual medical expenses; and

(f) A payment to a Vietnam veteran's child who has spina bifida;

(7) Life insurance dividends;

(8) A benefit received under the provisions of the Older Americans Act of 1965, except wages or salary;

(9) A payment to a volunteer under the National and Community Service Trust Act of 1993, such as from SCORE, AmeriCorp-VISTA, RSVP, senior companion program, or the foster grandparent program;

(10) A payment received pursuant to the Agent Orange product liability settlement;

(11) A gift from a tax-exempt organization to a minor child who has a life-threatening condition;

(12) A hemophilia settlement fund payment;

(13) Income of an SSI recipient that is used toward an SSI approved plan for achieving self-support;

(14) Income provided to victims of a presidentially-declared disaster from federal programs and agencies, joint federal and state programs, state or local government programs, or private organizations; and

(15) Income placed in a trust under the provisions of § 67:46:05:32.03.

Except for interest earned on unspent payments received under subsection (13) or (14), interest earned on unspent income from the above excluded income sources is countable income when determining eligibility for long-term care or medical assistance.

Source: 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; 14 SDR 87, effective December 27, 1987; transferred from § 67:16:19:01.01, effective August 23, 1992; 20 SDR 92, effective December 21, 1993; 30 SDR 193, effective June 13, 2004.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References:

Definitions, § 67:46:04:02.

Earned income, 20 C.F.R. § 416.1110.

When we count unearned income, 20 C.F.R. § 416.1123(b)(3).

Unearned income we do not count, 20 C.F.R. § 416.1124(c).

Limited, improved pension for certain veterans receiving Medicaid-covered nursing home care, 38 U.S.C. § 5503.

Aid and attendance compensation for service connected disability or death, 38 U.S.C. § 1114.

Clothing allowance, 38 U.S.C. § 1162.

Dependency compensation for unusual medical expenses, 38 U.S.C § 1315.

Children of Vietnam veterans born with spina bifida, 38 U.S.C. § 1805.

Exclusion of payments received pursuant to the Agent Orange product liability settlement, Pub. L. No. 101-201.

67:46:04:04. Income from other benefit programs -- Overpayments. Income from other benefit programs includes amounts withheld by that program to recover overpayments made to an individual.

If an applicant or recipient was receiving long-term care assistance, medical assistance, adult foster care, or assisted living at the time an overpayment was made by the other benefit program and if the overpaid amount was considered as income by the department when received, the overpayment may not be reconsidered by the department at the time the overpaid amount is subsequently withheld from the individual by the other benefit program.

Source: Transferred from § 67:16:19:09, 9 SDR 133, effective April 27, 1983; transferred from § 67:16:19:01.02, effective August 23, 1992; 20 SDR 92, effective December 21, 1993.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:04:05. Determining monthly gross income. Repealed.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:19:02, effective August 23, 1992; repealed, 41 SDR 93, effective December 3, 2014.

67:46:04:06. Income considered in month received. The department considers income in the month received unless it is specifically excluded in § 67:46:04:03.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; transferred from § 67:16:19:03, effective August 23, 1992; 20 SDR 92, effective December 21, 1993.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References: Definitions, § 67:46:04:02; Income not spent in month received, § 67:46:05:40.

67:46:04:07. Irregular income totaling more than $20. Repealed.

Source: 9 SDR 133, effective April 27, 1983; transferred from § 67:16:19:03.01, effective August 23, 1992; repealed, 20 SDR 92, effective December 21, 1993.

67:46:04:08. Income before application. Income received by the applicant before the month of initial application is not considered as income when determining eligibility for long-term care assistance or medical assistance unless the application is for retroactive medical eligibility as in § 67: 4 6:01:03.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:19:05, effective August 23, 1992; 20 SDR 92, effective December 21, 1993; 46 SDR 50, effective October 10, 2019.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Disposal of resources for purposes of establishing eligibility for services, § 67:46:05:06.

67:46:04:09. Verification of income. Repealed.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; transferred from § 67:16:19:06, effective August 23, 1992; repealed, 41 SDR 93, effective December 3, 2014.

67:46:04:10. Income considered. For purposes of determining eligibility for long-term care assistance, an individual's income is determined according to the following:

(1) For an unmarried individual, the department considers only the individual's income;

(2) For a child born in a hospital and continuously hospitalized for 30 or more consecutive days from the date of birth, the department considers only the income available to the child during this confinement. The parent's or stepparent's income is not considered;

(3) For a child who does not meet the criteria contained in subdivision (2) of this section, the department considers the parent's or stepparent's income available to the child in the calendar month of entry to a hospital, nursing facility, or intermediate care facility. After the calendar month of entry, the department considers only the income of the parent or stepparent that is actually contributed to the child;

(4) For a married couple, if one spouse enters a hospital, nursing facility, or intermediate care facility and is not expected to remain in the facility for 30 consecutive days, the department considers the couple's combined income available to each other. If the spouse's stay exceeds 29 days, the requirements of chapter 67:46:07 apply;

(5) For a married couple of which only one spouse participates in either an HCBS or HCBWS program but is not expected to receive services for 30 consecutive days, the department considers the couple's combined income available to each other. If the spouse's participation in HCBS or HCBWS exceeds 29 days, the requirements of chapter 67:46:07 apply;

(6) For a married couple, if both spouses enter a long-term care facility during the same calendar month, the department considers the couple's combined income available to each other and shared equally in the calendar month of entry regardless of room occupancy. After the calendar month of entry, the department treats the couple as separate individuals and considers only that income which is actually available to the individual; and

(7) For a married couple living together during the calendar month that one spouse enters assisted living or adult foster care, the department considers the couple's combined income available to each other in the calendar month of entry. After the calendar month of entry, the department considers only that income which is available to the spouse in assisted living or adult foster care. If the spouse is entering an assisted living facility and is receiving benefits through HCBS or HCBWS, the provisions of subsection (5) apply.

Source: 2 SDR 74, effective May 13, 1976; 4 SDR 10, effective August 28, 1977; 5 SDR 109, effective July 1, 1979; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective July 21, 1982; 9 SDR 133, effective April 27, 1983; 11 SDR 34, effective September 6, 1984; 12 SDR 153, effective March 23, 1986; transferred from § 67:16:19:07, effective August 23, 1992; 20 SDR 92, effective December 21, 1993; 20 SDR 170, effective April 21, 1994; 30 SDR 193, effective June 13, 2004.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References:

Financial responsibility of relatives and other individuals, 42 C.F.R. § 435.602.

Spousal impoverishment, ch 67:46:07.

67:46:04:11. Twenty dollar income disregard for eligibility. Repealed.

Source: 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; transferred from § 67:16:19:07.01, effective August 23, 1992; repealed, 20 SDR 92, effective December 21, 1993.

67:46:04:12. Twenty dollar income disregard -- Exceptions. Repealed.

Source: 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; transferred from § 67:16:19:07.02, effective August 23, 1992; repealed, 20 SDR 92, effective December 21, 1993.

67:46:04:13 . Department to refer certain individuals to Social Security Administration to apply for supplemental security income . The department must refer an individual to the Social Security Administration to apply for supplemental security income if the individual's income , minus twenty dollars, is less than:

(1) The standard thirty-dollar supplemental security income payment , if the individual is living in a medical or nursing facility; or

(2) The supplemental security income standard benefit amount of nine hundred ninety-four dollars, if the individual is not institutionalized but living in an adult foster care home or an assisted living facility.

Source: 2 SDR 74, effective May 13, 1976; 4 SDR 35, effective December 22, 1977; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; 15 SDR 2, effective July 17, 1988; 16 SDR 203, effective May 27, 1990; transferred from § 67:16:19:08, effective August 23, 1992; 20 SDR 92, effective December 21, 1993; 21 SDR 162, effective March 23, 1995; 22 SDR 188, effective July 8, 1996; 24 SDR 67, effective November 26, 1997; 26 SDR 99, effective January 30, 2000; 28 SDR 178, effective July 3, 2002; 30 SDR 193, effective June 13, 2004; 31 SDR 107, effective February 1, 2005; 33 SDR 124, effective January 2, 2007; 34 SDR 271, effective April 17, 2008; 35 SDR 234, effective April 1, 2009; 38 SDR 123, effective January 23, 2012; 41 SDR 7, effective July 29, 2014; 41 SDR 218, effective June 30, 2015.; 44 SDR 94, effective December 4, 2017; 47 SDR 24, effective September 10, 2020 ; 47 SDR 138, effective July 1, 2021; 48 SDR 131, effective July 4, 2022; 49 SDR 125, effective July 3, 2023; 51 SDR 3, effective June 30, 2024; 51 SDR 140, effective June 30, 2025; 52 SDR 125, effective July 1, 2026.

General Authority: SDCL 28-6-1 .

Law Implemented: SDCL 28-6-1 (4)(6) .

Cross-Reference:

Long-term care residency requirement and beginning of eligibility, § 67:46:03:03 .

67:46:04:14 . Ineligibility when income exceeds three hundred percent of maximum supplemental security income standard. An individual who is in a medical or nursing facility or is participating in a home and community-based waiver program is ineligible to receive assistance under this article when the individual's monthly income exceeds three hundred percent of the maximum supplemental security income standard benefit amount.

Source: Transferred from § 67:46:04:13 , 20 SDR 92, effective December 21, 1993; 41 SDR 193, effective December 3, 2014 ; 49 SDR 125, effective July 3, 2023 .

General Authority: SDCL 28-6-1 .

Law Implemented: SDCL 28-6-1 .

Cross-References:

Long-term care residency requirement and beginning of eligibility, § 67:46:03:03 .

Department to refer certain individuals to Social Security Administration to apply for supplemental security income, subdivision 67:46:04:13 (2).

Medicaid income trust, § 67:46:05:33.01 .

67:46:04:15. Ineligibility when income exceeds monthly care rates for assisted living or adult foster care. An individual not receiving home and community based waiver services and who is in an assisted living facility or in adult foster care is ineligible to receive assistance under this article when the individual's net income exceeds the monthly care rates after application of the budgeting regulations contained in §§ 67:46:06:03 to 67:46:06:07, inclusive.

Source: Transferred from § 67:46:04:13, 20 SDR 92, effective December 21, 1993; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Long-term care residency requirements and beginning of eligibility, § 67:46:03:03.

67:46:04:16. Income from trust. The income from a trust that is considered available to the beneficiary is the maximum payment that is permitted under the terms of the trust assuming the full exercise of discretion by the trustee, whether or not that discretion is exercised.

If a trust instrument is not specific as to the beneficiary's ownership interest, the income is divided by the number of owners.

A payment made from the trust to the beneficiary or for the benefit of the beneficiary is income and is considered under the provisions of this chapter.

Source: 20 SDR 92, effective December 21, 1993; 20 SDR 170, effective April 21, 1994; 21 SDR 162, effective March 23, 1995.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Consideration of revocable and irrevocable trusts, § 67:46:05:32.02.

67:46:04:17. Income from real property held in trust by the federal government. Repealed.

Source: 20 SDR 144, effective March 10, 1994; repealed, 41 SDR 93, effective December 3, 2014.

67:46:04:18. Assets held in common with another person. Repealed .

Source: 21 SDR 162, effective March 23, 1995 ; 43 SDR 31, effective September 12, 2016 .

67:46:04:19. Assets disposed of to establish eligibility -- Ineligibility for services. Repealed .

Source: 21 SDR 162, effective March 23, 1995 ; 43 SDR 31, effective September 12, 2016 .

67:46:04:20. Absence of an income regulation. In the absence of specific regulations or income requirements for long-term care assistance not otherwise defined in this article, decisions shall be based on the current SSI regulations as provided in 42 U.S.C. §§ 1382 and 1383, as amended to July 1, 2014.

Source: 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1

CHAPTER 67:46:05

LONG-TERM CARE RESOURCE REQUIREMENTS

Section

67:46:05:01 Definitions.

67:46:05:02 Value of liquid resources.

67:46:05:03 Value of nonliquid resources.

67:46:05:04 Determining fair market value.

67:46:05:05 Absence of a resource regulation.

67:46:05:06 Disposal of resources for purposes of establishing eligibility.

67:46:05:06.01 Disposal of assets -- Look-back periods.

67:46:05:07 Return of transferred resource.

67:46:05:08 Life estate value.

67:46:05:08.01 Life estates purchased in another individual's home.

67:46:05:09 Calculating period of ineligibility.

67:46:05:09.01 Repealed.

67:46:05:09.02 Ineligibility if assets transferred.

67:46:05:09.03 Repealed.

67:46:05:10 Period of ineligibility waived under certain circumstances.

67:46:05:11 Rebuttal of intent to transfer.

67:46:05:12 Compensation for resource.

67:46:05:13 Repealed.

67:46:05:14 Repealed.

67:46:05:15 Home property exclusion.

67:46:05:16 Transfer of home property not affecting eligibility.

67:46:05:17 Transfer of property not affecting eligibility.

67:46:05:18 Temporary absence from home property.

67:46:05:19 Home property abandonment.

67:46:05:20 Real property held in trust.

67:46:05:21 Nonbusiness income-producing property.

67:46:05:22 Nonbusiness property used to produce goods or services.

67:46:05:23 Property representing governmental authority.

67:46:05:24 Trade or business property.

67:46:05:25 Repealed.

67:46:05:26 Other property.

67:46:05:27 Conversion or sale of recipient's resource.

67:46:05:28 Sale price paid in installments.

67:46:05:29 Conversion of recipient's excludable resource.

67:46:05:30 Resource limit.

67:46:05:31 Personal property excluded from resources.

67:46:05:32 Trust considered a resource.

67:46:05:32.01 Establishment of trust.

67:46:05:32.02 Consideration of revocable and irrevocable trusts.

67:46:05:32.03 Trusts excepted from consideration as a resource.

67:46:05:32.04 Trust waived under certain circumstances.

67:46:05:32.05 Trustee required to provide annual accounting.

67:46:05:33 Medicaid-qualifying trust.

67:46:05:33.01 Medicaid income trust.

67:46:05:34 Resource available under Medicaid-qualifying trust.

67:46:05:35 Bank accounts.

67:46:05:36 Savings bonds.

67:46:05:37 Life insurance.

67:46:05:38 Stocks, notes, loans, and mortgages.

67:46:05:39 Irrevocable prepaid burial contracts.

67:46:05:40 Income not spent in month received.

67:46:05:41 Distinguishing resources from income.

67:46:05:42 Resources considered.

67:46:05:43 Time of resource eligibility determination.

67:46:05:44 Burial spaces excluded from resources.

67:46:05:45 Separate burial funds excluded from resources.

67:46:05:46 Increase in value of excluded burial funds.

67:46:05:47 Reductions to separate burial funds.

67:46:05:48 Repealed.

67:46:05:49 Retroactive SSI and retroactive retirement, survivors, and disability income payments.

67:46:05:50 Exclusion of agent orange settlement payments.

67:46:05:51 Assets held in common with another person.

67:46:05:52 Disclosure of annuities.

67:46:05:53 Annuities -- Department becomes remainder beneficiary.

67:46:05:54 Repealed.

67:46:05:55 Treatment of admission or entrance fee of applicant or recipient residing in continuing care retirement or life care community.

67:46:05:01. Definitions. Terms used in this chapter mean:

(1) "Assets," the income and resources of an individual and the individual's spouse, including any income or resource which the individual or the individual's spouse is entitled to receive but does not because of some action or inaction on the part of any of the individuals listed in § 67:46:05:32.01;

(2) "Contiguous property," all land adjacent to the home including land separated only by roads, rivers, streams, and similar features and not separated by intervening property owned by another person;

(3) "Equity" or "equity value," the fair market value of property less any encumbrances. Future interest owed as a result of the debt is not considered in establishing equity value;

(4) "Fair market value," the amount for which the property can be expected to sell on the open market in the geographic area involved under existing economic conditions;

(5) "Home property," a shelter which the individual owns and which is used as the individual's principal place of residence, including the buildings and contiguous property;

(6) "Liquid resources," assets which are in cash or payable in cash on demand or financial instruments which can be converted into cash within 20 workdays. Liquid resources include cash on hand, savings or checking accounts, stocks, bonds, mutual fund shares, promissory notes, mortgages, contracts for deed, and similar properties;

(7) "Nonliquid resources," all resources other than liquid resources and excluded resources. Nonliquid resources include real, personal, or business property such as inventories, livestock, implements, vehicles, stored grain, and similar properties;

(8) "Other real property," real property other than that having the characteristics of home property or real property held in trust;

(9) "Real property," real property as defined in SDCL 43-1-3 ;

(10) "Real property held in trust," real property to which the federal government has the legal title but which is being held for the benefit of citizens;

(11) "Transfer," any action or inaction taken by an individual or the individual's spouse or someone acting on behalf of or at the request of the individual or the individual's spouse which results in loss of possession, ownership of a lesser share, or less control or access by an individual of any interest in income or real or personal property, including items such as a gift, a disclaimer of inheritance, or an assignment; or any action that results in reducing the amounts which an individual might otherwise claim from any source, including items such as a decedent's estate, a trust or similar legal device, or an obligation from someone required by law to furnish support;

(12) "Trust" or "Similar legal device," any arrangement, instrument, or device, such as an annuity, escrow account, pension fund, or investment account, in which another entity controls an individual's funds and has a duty to that individual to follow the instructions of the arrangement, instrument, or device; and

(13) "Vested right" or "life estate interest," the immediate fixed right of possession or future enjoyment of property by an individual or individuals.

Source: 2 SDR 74, effective May 13, 1976; 4 SDR 10, effective August 28, 1977; 5 SDR 109, effective July 1, 1979; 7 SDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:01, effective August 23, 1992; 21 SDR 162, effective March 23, 1995; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References:

Real and personal property distinguished, SDCL 43-1-3.

Homestead limited to house or mobile home and appurtenant buildings -- Business place -- Minimum size of mobile home, SDCL 43-31-2.

Homestead containing one or more lots or tracts of land -- Contiguous tracts -- Use in good faith, SDCL 43-31-3.

Limited area of homestead -- Mineral lands, SDCL 43-31-4.

67:46:05:02. Value of liquid resources. Liquid resources, other than cash, are valued according to their equity values.

Source: 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; transferred from § 67:16:20:01.01, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:03. Value of nonliquid resources. Nonliquid resources are valued according to their equity value, except as otherwise provided for automobiles.

Source: 7 SDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; transferred from § 67:16:20:01.02, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Personal property excluded from resources, § 67:46:05:31.

67:46:05:04. Determining fair market value. The fair market value of property or contractual rights to receive money must be determined by one of the following:

(1) A real estate appraiser;

(2) A Bureau of Indian Affairs realty office;

(3) An average of three estimates from individuals, other than the applicant or recipient, who are familiar with property values within the geographic area;

(4) A Farm Home Administration office;

(5) A bank or savings and loan official;

(6) An agency that specializes in discounting contractual rights using amortization schedules, current property values, or other pertinent data; or

(7) One hundred percent of the county tax valuation unless:

a. The county tax valuation notice is more than a year old based on its date of issue; or

b. The county tax valuation notice pertains to a special purpose assessment, unless it also provides a fair market value assessment, which can be used; or

c. The county tax valuation assessment is under appeal; or

d. The county tax valuation assessment is based on something other than fair market value, such as agricultural, mining or industrial; or

e. The county tax valuation notice provides either no assessment ratio or only a range.

The applicant or recipient must provide documentation to the department which establishes the property's or contract's fair market value. The department reserves the right to obtain and use independent fair market valuations when, in its judgment, the valuations submitted are too high or too low.

The initial value of a life estate is determined according to § 67:46:05:08.

The initial value of contractual rights to receive installment payments for property that was sold is determined according to § 67:46:05:28.

Source: 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:01.03, effective August 23, 1992; 21 SDR 162, effective March 23, 1995; 25 SDR 13, effective August 9, 1998; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1(4)(6) , 28-6-3.1.

Law Implemented: SDCL 28-6-1(4)(6) , 28-6-3.1.

67:46:05:05. Absence of a resource regulation. In the absence of specific regulations or resource requirements for long-term care assistance not otherwise defined in this article, decisions shall be based on the current SSI regulations as provided in 42 U.S.C. §§ 1382 and 1383.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; transferred from § 67:16:20:02, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:06. Disposal of resources for purposes of establishing eligibility. An individual is ineligible for long-term care services if an asset or an interest in an asset owned by the individual or the individual's spouse is transferred by the individual, the individual's spouse, or a person acting for and legally authorized to execute a contract for the individual or the individual's spouse for less than fair market value on or after the look back date specified in § 67:46:05:06.01. Unless otherwise specified in § 67:46:05:08.01 or 67:46:05:38, the value of the transferred asset is the difference between the fair market value at the time of the transfer and the amount of compensation received, if any.

This type of transfer is presumed to have been made for the purpose of establishing eligibility for long-term care services under this article, unless the individual furnishes clear and convincing evidence that the assets were either transferred exclusively for some other reason or the individual intended to dispose of them at fair market value or for other valuable consideration.

Medicaid-qualifying trusts are irrebuttably presumed to have been made for the purpose of establishing eligibility for services under this article.

Source: 7 SDR 109, effective May 31, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; 11 SDR 86, effective December 30, 1984; 16 SDR 10, effective July 23, 1989; 16 SDR 203, effective May 27, 1990; 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:02.01, effective August 23, 1992; 33 SDR 44, effective August 31, 2006; 35 SDR 166, effective December 24, 2008.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References:

Transfer of home property not affecting eligibility, § 67:46:05:16.

Transfer of other property not affecting eligibility, § 67:46:05:17.

Treatment of potential payments from Medicaid qualifying trusts, 42 U.S.C. § 1396a( k).

Rebuttal of intent to transfer, § 67:46:05:11.

Look-back period, 42 U.S.C. § 1396p(c )( 1)(B)(i).

67:46:05:06.01. Disposal of assets -- Look-back periods. The department shall use the following look-back periods when determining whether an asset was transferred for less than fair market value:

(1) The look-back period extends back to the date 60 months before the first date on which the individual is institutionalized and applies for long-term care assistance; and

(2) If the asset was transferred to a trust or similar legal device, the look-back period extends back to the date 60 months before the first date the individual is institutionalized and applies for long-term care assistance.

Source: 33 SDR 44, effective August 31, 2006; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Look-back period, 42 U.S.C. § 1396p(c)(1)(B)(i).

67:46:05:07. Return of transferred resource. If the asset which was transferred according to § 67:46:05:06 is returned to the individual and the individual notifies the Department as required by § 67:46:02:09 and provides the Department with verification of the return, all eligibility conditions, including the resource limit, will be reevaluated.

Source: 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; transferred from § 67:16:20:02.02, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

    67:46:05:08 .  Life estate value. A life estate is considered other real property and is considered a resource to the individual applying for or receiving long-term care services or medical assistance. The value of a life estate is calculated by using the table contained in this section. If the individual has a life estate, find the individual's age on the table and multiply the corresponding figure in the life estate column by the fair market value of the property. The result is the value of the life estate and the amount considered a resource to the individual. If the individual has a remainder interest in the estate, use the applicable figure from the remainder column to compute the value.

AGE LIFE ESTATE REMAINDER 0 .97188 .02812 1 .98988 .01012 2 .99017 .00983 3 .99008 .00992 4 .98981 .01019 5 .98938 .01062 6 .98884 .01116 7 .98822 .01178 8 .98748 .01252 9 .98663 .01337 10 .98565 .01435 11 .98453 .01547 12 .98329 .01671 13 .98198 .01802 14 .98066 .01934 15 .97937 .02063 16 .97815 .02185 17 .97700 .02300 18 .97590 .02410 19 .97480 .02520 20 .97365 .02635 21 .97245 .02755 22 .97120 .02880 23 .96986 .03014 24 .96841 .03159 25 .96678 .03322 26 .96495 .03505 27 .96290 .03710 28 .96062 .03938 29 .95813 .04187 30 .95543 .04457 31 .95254 .04746 32 .94942 .05058 33 .94608 .05392 34 .94250 .05750 35 .93868 .06132 36 .93460 .06540 37 .93026 .06974 38 .92567 .07433 39 .92083 .07917 40 .91571 .08429 41 .91030 .08970 42 .90457 .09543 43 .89855 .10145 44 .89221 .10779 45 .88558 .11442 46 .87863 .12137 47 .87137 .12863 48 .86374 .13626 49 .85578 .14422 50 .84743 .15257 51 .83674 .16126 52 .82969 .17031 53 .82028 .17972 54 .81054 .18946 55 .80046 .19954 56 .79006 .20994 57 .77931 .22069 58 .76822 .23178 59 .75675 .24325 60 .74491 .25509 61 .73267 .26733 62 .72002 .27998 63 .70696 .29304 64 .69352 .30648 65 .67970 .32030 66 .66551 .33449 67 .65098 .343902 68 .63610 .363690 69 .62086 .37914 70 .60522 .39478 71 .58914 .41086 72 .57261 .42739 73 .55571 .44429 74 .53862 .46138 75 .52149 .47851 76 .50441 .49559 77 .48742 .51258 78 .47049 .52951 79 .45357 .54643 80 .43659 .56341 81 .41967 .58033 82 .40295 .59705 83 .38642 .61358 84 .36998 .63002 85 .35359 .64641 86 .33764 .66236 87 .32262 .67738 88 .30859 .69141 89 .29526 .70474 90 .28221 .71779 91 .26955 .73045 92 .25771 .74229 93 .24692 .75308 94 .23728 .76272 95 .22887 .77113 96 .22181 .77819 97 .21550 .78450 98 .21000 .79000 99 .20486 .79514 100 .19975 .80025 101 .19532 .80468 102 .19054 .80946 103 .18437 .81563 104 .17856 .82144 105 .16962 .83038 106 .15488 .84512 107 .13409 .86591 108 .10068 .89932 109 .04545 .95455

    If the individual thinks that the value established by this table is in accurate due to the individual's life expectancy, a written statement from a physician, physician assistant, or nurse practitioner which establishes an alternate, estimated life expectancy may be submitted to the department. The estimated life expectancy will be used, in conjunction with the Social Security Actuarial Life Table, to determine the comparable age for application of the life estate and remainder interest table .

    Source: 8 SDR 170, effective June 21, 1982; 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:02.03, effective August 23, 1992 ; 45 SDR 82, effective December 10, 2018 .

    General Authority: SDCL 28-6-1 .

    Law Implemented: SDCL 28-6-1 .

67:46:05:08.01. Life estates purchased in another individual's home. Purchase of a life estate interest in another individual's home is considered a transfer of an asset for less than fair market value unless the purchaser resides in the home for a period of at least 12 consecutive months after the date of the purchase. For purposes of determining the period of ineligibility under § 67:46:05:09, the value of the interest in the life estate is the purchase price of the life estate.

If the purchaser resides in the home for 12 consecutive months or more, the department shall determine whether the life estate interest was purchased for fair market value. If the department determines that the life estate interest was purchased for an amount greater than fair market value, the purchase is considered a transfer of an asset for purposes of establishing eligibility and shall apply the provisions of § 67:46:05:06. If the department determines the purchase of the life estate interest was for fair market value or less and the individual or the individual's spouse or child who is either under age 21 or is blind or permanently and totally disabled is no long living in the home, the department shall count the current value of the life estate as a resource countable toward the resource limit established in § 67:46:05:30. If the department determines the purchase of the life estate interest was for fair market value or less and the individual or the individual's spouse or child who is either under age 21 or is blind or permanently and totally disabled continues to live in the home, the home is considered home property according to § 67:46:05:15.

The department counts the value of a life estate as a resource countable toward the resource limit established in § 67:46:05:30, unless the life estate is considered home property according to § 67:46:05:15.

Source: 33 SDR 44, effective August 31, 2006; 35 SDR 166, effective December 24, 2008.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References:

Inclusion of transfers to purchase life estates, 42 U.S.C. § 1396p(c )( 1)(J).

Life estate value, § 67:46:05:08.

67:46:05:09. Calculating period of ineligibility. The department shall establish a period of ineligibility for long-term care services if an asset has been disposed of for the purpose of establishing Medicaid eligibility. The period of ineligibility is determined by dividing the uncompensated value of the transferred assets by the monthly state-wide average of long-term care costs for private pay individuals for the state's current fiscal year.

The department shall impose a partial month period of ineligibility if the sum arrived at in the above calculation results in a partial month remainder, rounded up to a whole day.

Source: 16 SDR 10, effective July 23, 1989; 16 SDR 203, effective May 27, 1990; transferred from § 67:16:20:02.04, effective August 23, 1992; 19 SDR 141, effective March 25, 1993; 21 SDR 162, effective March 23, 1995; 22 SDR 188, effective July 8, 1996; 31 SDR 107, effective February 1, 2005.

General Authority: SDCL 28-6-1 , 28-6-3.1.

Law Implemented: SDCL 28-6-3.1.

Cross-References: Disposal of resources for purposes of establishing eligibility, § 67:46:05:06; Facility's average per diem charge, § 67:16:04:58.

67:46:05:09.01. Ineligibility when assets transferred before July 1, 1994. Repealed.

Source: 21 SDR 162, effective March 23, 1995; repealed, 30 SDR 193, effective June 13, 2004.

67:46:05:09.02. Ineligibility if assets transferred. If an asset is disposed of for the purpose of establishing Medicaid eligibility and the asset was disposed of for less than fair market value within the look-back periods established in § 67:46:05:06.01, the period of ineligibility is determined under the provisions of § 67:46:05:09.

The department shall apportion the number of months of ineligibility equally between the individual receiving home and community based or nursing facility services and the individual's spouse who is applying for home and community based or nursing facility services if the following conditions exist:

(1) Both the individual and the individual's spouse are residing in a nursing facility or receiving home and community based waiver services or if one spouse is in a nursing facility and the other is receiving home and community based waiver services;

(2) The department had previously determined that the individual residing in a nursing facility or receiving home and community based waiver services was ineligible because of a transfer and the individual is currently serving out a period of ineligibility; and

(3) The spouse would otherwise be eligible for nursing facility or home and community based waiver services except for the period of ineligibility.

If more than one transfer occurs, the periods of ineligibility are consecutive. If a period of ineligibility is in effect and a transfer occurs, the period of ineligibility for the additional transfer is added to the period of ineligibility already in effect.

If the individual is an applicant, the period of ineligibility begins the date the applicant is eligible for nursing facility or home and community based waiver services but for the period of ineligibility or the date after a prior period of ineligibility has ended, whichever is later. If the individual is a recipient, the period of ineligibility begins with the date the applicant became eligible for nursing facility or home and community based waiver services, the first day of the month after the transfer occurred, or the date after a prior period of ineligibility has ended, whichever is later.

Source: 21 SDR 162, effective March 23, 1995; 30 SDR 193, effective June 13, 2004; 31 SDR 107, effective February 1, 2005; 33 SDR 44, effective August 31, 2006; 41 SDR 93, effective December 3, 2014; 43 SDR 31, effective September 12, 2016.

General Authority: SDCL 28-6-1 , 28-6-3.1.

Law Implemented: SDCL 28-6-3.1.

Cross-References:

Disposal of resources for purposes of establishing eligibility, § 67:46:05:06.

Lengthening look-back period for all disposals to five years, 42 U.S.C. § 1396p(c)(1)(B)(i).

Authority for states to accumulate multiple transfers into one penalty period, 42 U.S.C. § 1396p(c)(1)(H).

67:46:05:09.03. Assets disposed of to establish eligibility -- Ineligibility for services. Repealed.

Source: 21 SDR 162, effective March 23, 1995; 41 SDR 93, effective December 3, 2014; 46 SDR 50, effective October 10, 2019.

67:46:05:10. Period of ineligibility waived under certain circumstances. The department may waive the period of ineligibility specified in §§ 67:46:05:09 and 67:46:05:15 if:

(1) The individual or someone acting on the individual's behalf provides clear and convincing evidence that the individual has no other means of support and denial of nursing facility or home and community based waiver services assistance would deprive the individual of food, clothing, shelter, or other necessities of life or medical care, the absence of which would endanger the individual's health or life; and

(2) The individual or someone acting on the individual's behalf must either demand the return of the asset that was transferred or receive the fair market value for the asset; and

(3) If the asset is not returned upon demand or fair market value is not received, the individual or someone acting on the individual's behalf must either:

(a) Retain an attorney who must initiate a civil action for the recovery of the asset or its fair market value; or

(b) If the transfer was the result of a crime of theft or exploitation, the individual or someone acting on the individual's behalf must report the incident to a local law enforcement agency.

The home and community based waiver provider or the nursing facility in which the individual is residing may file a waiver application on behalf of the individual if the waiver application is done with the consent of the individual or the individual's personal representative.

An individual may appeal a denial of a waiver request under the provisions of chapter 67:17:02. The burden of proof is with the individual and there must be clear and convincing evidence that justifies the waiver.

Source: 16 SDR 10, effective July 23, 1989; 16 SDR 203, effective May 27, 1990; 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:02.05, effective August 23, 1992; 33 SDR 44, effective August 31, 2006; 35 SDR 166, effective December 24, 2008; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1 , 28-6-3.1.

Law Implemented: SDCL 28-6-3.1 , Pub. L. No. 100-360 (102 Stat. 761).

Cross-References:

Disposal of resources for purposes of establishing eligibility, § 67:46:05:06.

Notice of right to request waiver of period of ineligibility -- Right to request waiver -- Assets transferred at less than fair market value, § 67:46:08:05.

Availability of hardship waivers, 42 U.S.C. § 1396p(c)(2)(D).

Facility may file for waiver on behalf of institutionalized individual, 42 U.S.C. § 1396p(c)(2)(D).

67:46:05:11. Rebuttal of intent to transfer. Intent to transfer a resource for purposes of establishing eligibility for services under this article may be rebutted. The individual or the individual's spouse must be able to show that there were other resources at the time the transfer was made which met the individual's care and maintenance needs and there was no evidence of a disability or medical condition which would have required long-term care assistance or an increased expense beyond the current or future means of financial support.

The provisions of this section do not apply to Medicaid-qualifying trusts.

Source: 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:02.06, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References:

Disposal of resources for purposes of establishing eligibility, § 67:46:05:06.

Medicaid-qualifying trust, § 67:46:05:33.

Resource available under Medicaid-qualifying trust, § 67:46:05:34.

67:46:05:12. Compensation for resource. The compensation for a resource includes all money, real or personal property, food, shelter, or services received by the individual or eligible spouse at or after the time of transfer in exchange for the resource only if the compensation was provided pursuant to a binding and legally enforceable agreement in effect at the time of the transfer. Compensation also includes all money, real or personal property, food, shelter, or services received prior to the actual transfer if they were provided pursuant to a written, binding and legally enforceable agreement in effect at the time the compensation for the resource is provided whereby the eligible individual would transfer the resource or otherwise pay for such items.

Source: 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:02.07, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:13. Availability of income and resources. Repealed.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:03, effective August 23, 1992; repealed, 41 SDR 93, effective December 3, 2014.

67:46:05:14. Classification of real property. Repealed.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:20:04, effective August 23, 1992; repealed, 41 SDR 93, effective December 3, 2014.

    67:46:05:15 .  Home property exclusion. An individual's home property is excluded from assets if the individual's eligibility for long-term care assistance is based on an application that was received by the department before January 1, 2006, and so long as the property continues to be the individual's principal place of residence or continues to be occupied by and is the primary residence of the individual's spouse, child, stepchild, grandchild, parent, stepparent, grandparent, aunt, uncle, niece, nephew, brother, sister, stepbrother, stepsister, half - brother, half - sister, cousin , or in-law , who is dependent on the individual .

    The value of the individual's ownership interest in a jointly owned home is excluded from assets for as long as a sale of the property would cause undue hardship to a co-owner , due to loss of housing. To show an undue hardship , the individual must provide clear and convincing evidence that the co-owner uses the property as the co-owner's principal place of residence , would have to move if the property were sold , and has no other readily available housing.

    If an individual's eligibility for long-term care assistance is based on an application that was received by the department after December 31, 20 23 , the individual's home property interest , up to an equity value of seven hundred fifty-two thousand dollars, is excluded from the individual's assets if it continues to be the individual's principal place of residence.

    If the equity interest in the home is greater than the amount specified, the individual is ineligible for long-term care medical assistance , regardless of whether the individual is anticipated to return to the home to live.

    The equity limit contained in this section does not apply if the individual's spouse , or child who is under age twenty-one, is blind or permanently and totally disabled and is lawfully residing in the home.

    Nothing in this rule prevents the individual from using a reverse mortgage or home equity loan to reduce the total equity interest in the home.

    Source: 2 SDR 74, effective May 13, 1976; 4 SDR 10, effective August 28, 1977; 5 SDR 109, effective July 1, 1979; 7 SDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:20:05, effective August 23, 1992; 33 SDR 44, effective August 31, 2006; 41 SDR 93, effective December 3, 2014; 41 SDR 218, effective June 30, 2015; 44 SDR 94, effective December 4, 2017; 47 SDR 24, effective September 10, 2020 ; 47 SDR 138, effective July 1, 2021; 48 SDR 131, effective July 4, 2022; 49 SDR 125, effective July 3, 2023; 51 SDR 3, effective July 1, 2024; 51 SDR 140, effective June 30, 2025; 52 SDR 125, effective July 1, 2026 .

    General Authority: SDCL 28-6-1 , 28-6-18 .

    Law Implemented: SDCL 28-6-1 (4)(6), 28-6-1 7 .

    Cross-References:

    Disqualification for long-term care assistance for individuals with substantial home equity , 42 U.S.C. § 1396p(f).

    Period of ineligibility waived under certain circumstances, § 67:46:05:10 .

67:46:05:16. Transfer of home property not affecting eligibility. A transfer of home property by an applicant for or recipient of long-term care services does not affect eligibility when the transfer is to one of the following individuals:

(1) A spouse;

(2) A son or daughter under age 21;

(3) A son or daughter meeting the SSI definition of blind or disabled;

(4) A son or daughter who has resided in the home for at least two years immediately prior to the date the applicant or recipient entered the long-term care facility and who provided care to the applicant or recipient which enabled the applicant or recipient to remain at home rather than enter a medical institution or a skilled or intermediate care facility; or

(5) A brother or sister who has an equity interest in the home property and who resided in the home for at least one year immediately prior to the date the applicant or recipient entered the medical institution or a skilled or intermediate care facility.

Source: 16 SDR 10, effective July 23, 1989; transferred from § 67:16:20:05.01, effective August 23, 1992.

General Authority: SDCL 28-6-1 , 28-6-3.1.

Law Implemented: SDCL 28-6-3.1 , Pub. L. No. 100-360 (102 Stat. 761).

Cross-References: Determination of disability, § 67:46:03:18; Determination of blindness, § 67:46:03:19.

67:46:05:17. Transfer of property not affecting eligibility. A transfer of a resource does not affect eligibility for long-term care services when the transfer is to a son or daughter meeting the definition of blind or disabled according to §§ 67:46:03:02, 67:46:03:18, and 67:46:03:19 or when the transfer is from one spouse to another or to another person for the sole benefit of the spouse.

A transfer after August 10, 1993, does not affect eligibility for long-term care services when the transfer is to a trust established solely for the benefit of one of the following:

(1) A son or daughter who meets the definition of disabled or blind according to §§ 67:46:03:02, 67:46:03:18, and 67:46:03:19;

(2) An individual under age 65 who meets the definition of disabled according to § 67:46:03:18; or

(3) An individual who has a Medicaid income trust and the amount placed into the trust does not exceed amounts necessary to pay the monthly nursing facility rate.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:20:05.02, effective August 23, 1992; 21 SDR 162, effective March 23, 1995.

General Authority: SDCL 28-6-1 , 28-6-3.1.

Law Implemented: SDCL 28-6-1 , 28-6-3.1.

Cross-Reference: Medicaid income trust, § 67:46:05:33.01.

67:46:05:18. Temporary absence from home property. In order to establish temporary absence as opposed to home property abandonment, the individual must present convincing evidence at the time of application, such as a physician's statement, indicating that residence in the long-term care facility is temporary. Temporary absence must be reestablished at 12-month intervals. Home property is abandoned if the individual is unable to provide convincing evidence that the absence is temporary or that a return to the home is realistic.

Source: 2 SDR 74, effective May 13, 1976; 5 SDR 109, effective July 1, 1979; 7 SDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:08, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References:

Transfer of home property not affecting eligibility, § 67:46:05:16.

Conversion of recipient's excludable resource, § 67:46:05:29.

Resource limit, § 67:46:05:30.

67:46:05:19. Home property abandonment. Home property is considered a nonliquid resource to the individual when it no longer can be excluded under § 67:46:05:15 or 67:46:05:18. Admission of the individual into a long-term care facility or another change in residence, whichever occurs first, is presumed to be establishing another principal place of residence.

Source: 2 SDR 74, effective May 13, 1976; 4 SDR 10, effective August 28, 1977; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:09, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:20. Real property held in trust. Real property held in trust is not considered a resource for long-term care assistance if the applicant or recipient has restricted access to the principal, which includes required approval of the secretary of interior or a duly appointed representative.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; transferred from § 67:16:20:11, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References: Definitions, § 67:46:05:01; Exclusion of Indian lands, 20 C.F.R. § 416.1234.

67:46:05:21. Nonbusiness income-producing property. Income-producing real or personal property is excluded as a resource if it meets the following requirements:

(1) It is essential to self-support;

(2) The individual's equity in the property is less than $6,000; and

(3) The individual's net annual return on the equity is at least six percent. The net annual return requirement must be met every year. However, if the property produces less because of circumstances beyond the individual's control, there must be a reasonable expectation that the property will again produce six percent income within 24 months following the last day of the tax year in which the income fell below six percent of the equity.

If equity in the property exceeds $6,000 and the six percent net annual return is met, the equity in excess of $6,000 must be combined with other countable resources and applied toward the resource limit.

If the net annual return is less than six percent of the equity value, the total equity is an includable resource.

If more than one nonbusiness income-producing property is involved, the total equity value of all nonbusiness income-producing property is considered within the $6,000 limit and the return rate of six percent of equity applies to each property. Any property which does not meet the six percent return rate must be counted toward the resource limit together with any equity which exceeds the $6,000 limit.

Liquid resources are not considered property essential to self-support except when used as part of a trade or business.

Source: 2 SDR 74, effective May 13, 1976; 4 SDR 10, effective August 28, 1977; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; 13 SDR 8, effective August 3, 1986; 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:13, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References:

Resource limit, § 67:46:05:30.

Exclusion of property of a trade or business essential to self-support, 20 C.F.R. § 416.1222.

Exclusion of nonbusiness property essential to self-support, 20 C.F.R. § 416.1224.

67:46:05:22. Nonbusiness property used to produce goods or services. Personal property such as equipment and tools which is essential for the individual's daily activities for self-support is excluded from resources as long as the equity value does not exceed $6,000.

Real property used to produce food or livestock for personal consumption in the individual's home is excluded from resources as long as the equity value does not exceed $6,000.

Any equity value in excess of $6,000 must be included as a resource.

The six percent net annual return provisions required under § 67:46:05:21 do not apply to property meeting the conditions of this section.

Source: 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:13.01, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:23. Property representing governmental authority. Property essential to self-support which represents the authority granted by a government agency to engage in an income-producing activity, such as a special license or permit, is an excluded resource.

Source: 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:13.02, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:24. Trade or business property. Real or personal property essential for self-support is excluded from resources if it is used for the individual's trade, business, or employment. If the property is normally used for these purposes but is not currently being used because of circumstances beyond the individual's control, the property is excluded from resources when there is a reasonable expectation that the use will resume within 12 months from its last use. If the property is not being used because the individual is disabled, the property is excluded from resources when there is a reasonable expectation that the use will resume within 24 months of its last use.

Source: 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:13.03, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:25. Property not considered essential to self-support. Repealed.

Source: 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:13.04, effective August 23, 1992; 21 SDR 162, effective March 23, 1995; repealed, 30 SDR 193, effective June 13, 2004.

67:46:05:26. Other property. Real or personal property owned by the applicant or recipient which produces no income or is not excluded in this chapter shall be considered a resource according to its equity value.

Source: 2 SDR 74, effective May 13, 1976; 4 SDR 10, effective August 28, 1977; 7 SDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:20:14, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:27. Conversion or sale of recipient's resource. The conversion or sale of a recipient's resource may not be considered as income. The changed resource, whether liquid or nonliquid in nature, is a resource subject to all the resource criteria for continuing eligibility and is considered a countable resource in the month following the month in which the conversion occurred.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; transferred from § 67:16:20:15, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:28. Sale price paid in installments. If an individual is entitled to receive installment payments for property that was sold, the current balance of the unpaid principal is considered a resource for eligibility purposes.

Source: 8 SDR 170, effective June 21, 1982; transferred from § 67:16:20:15.01, effective August 23, 1992; 20 SDR 170, effective April 21, 1994; 41 SDR 93, effective December 3, 2014

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:29. Conversion of recipient's excludable resource. An excludable resource which is converted to a nonexcludable resource is considered in the resource limit the first day of the month following the conversion. A resource which loses its exclusionary status is considered in the resource limit the first day of the month following the change of status.

Source: 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:15.02, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:30. Resource limit. The resource limit, including both liquid and nonliquid resources, for long-term care assistance is $2,000 for an individual and $3,000 for an individual with a spouse if both spouses begin receiving long-term care services in the same month.

Source: 2 SDR 74, effective May 13, 1976; 4 SDR 10, effective August 28, 1977; 7 SDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 9 SDR 133, effective April 27, 1983; 12 SDR 153, effective March 23, 1986; 13 SDR 145, effective April 12, 1987; 14 SDR 87, effective December 27, 1987; transferred from § 67:16:20:16, effective August 23, 1992; 30 SDR 193, effective June 13, 2004; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Limitation on resources, 20 C.F.R. § 416.1205.

67:46:05:31. Personal property excluded from resources. The following items shall be excluded when determining the value of resources:

(1) One automobile is excluded regardless of its value if it is used for necessary transportation for the individual or couple or a member of the individual's or couple's household; and

(2) Household goods, personal effects, and all items essential to everyday living.

Source: 2 SDR 74, effective May 13, 1976; 4 SDR 10, effective August 28, 1977; 7 SDR 23, effective September 18,1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 13 SDR 8, effective August 3, 1986; transferred from § 67:16:20:17, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References: Exclusion of household goods and personal effects, 20 C.F.R. § 416.1216; Exclusion of the automobile, 20 C.F.R. § 416.1218.

67:46:05:32. Trust considered a resource. If the individual, the individual's spouse, or someone, including a court or administrative body, authorized to act on behalf of the individual or the individual's spouse has the legal power to dissolve the trust or invade the principal and use the proceeds, the principal of the trust is considered a resource.

Source: 2 SDR 74, effective May 13, 1976; 5 SDR 109, effective July 1, 1979; 7 SDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:18, effective August 23, 1992; 20 SDR 170, effective April 21, 1994; 21 SDR 162, effective March 23, 1995.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References:

Consideration of revocable and irrevocable trusts, § 67:46:05:32.02.

Trusts excepted from consideration as a resource, § 67:46:05:32.03.

Income from trust, § 67:46:04:16.

67:46:05:32.01. Establishment of trust. The department considers that an individual has established a trust or similar legal device if assets of the individual were used to form all or part of the corpus of the trust and if the trust was established by one of the following persons:

(1) The individual;

(2) The individual's spouse;

(3) A person, including any court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual's spouse; or

(4) A person, including any court or administrative body, acting at the direction or request of the individual or the individual's spouse.

The provisions of this section do not apply to testamentary trusts.

Source: 20 SDR 170, effective April 21, 1994; 21 SDR 162, effective March 23, 1995.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Consideration of revocable and irrevocable trusts, § 67:46:05:32.02.

67:46:05:32.02. Consideration of revocable and irrevocable trusts. A trust or similar legal device established under the provisions of § 67:46:05:32.01 is subject to this section regardless of the purpose for which it is established, whether the trustee has or exercises any discretion under the trust, whether there are restrictions on when or whether distribution may be made from the trust, or whether there are restrictions on the use of any distribution from the trust.

If the trust is a revocable trust, the principal of the trust is considered a resource which is available to the individual. A payment from the trust to or for the benefit of the individual is considered income to the individual. Except for trustee and legal fees, any other payment made from the trust is considered a resource which was disposed of by the individual to establish eligibility for Medicaid.

If the trust is an irrevocable trust and contains any provisions under which payment from the trust may be made to or for the benefit of the individual, the entire portion of the principal or income on the principal from which payment to the individual could be made is considered a resource and any payment from that portion of the principal or income to or for the benefit of the individual is considered income to the individual. Except for trustee and legal fees, any other payment made from the trust is considered a resource which was disposed of by the individual to establish eligibility for Medicaid. The department considers any portion of the principal or income on the principal from which a payment to the individual or for the benefit of the individual may not be made under any circumstances to be a resource which was transferred for purposes of establishing eligibility for Medicaid.

Source: 21 SDR 162, effective March 23, 1995.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Trusts excepted from consideration as a resource, § 67:46:05:32.03.

67:46:05:32.03. Trusts excepted from consideration as a resource. Except for payments from the trust to the beneficiary or for the benefit of the beneficiary, § 67:46:05:32.02 does not apply to any of the following trusts:

(1) A Medicaid income trust created under the provisions of § 67:46:05:33.01;

(2) An irrevocable trust that contain s the assets of an individual who is disabled and under age 65 if the trust is established for the sole benefit of the individual and provides that upon the death of the individual and before any other distribution is made from the trust, the department shall receive all amounts remaining in the trust up to an amount equal to the total medical assistance paid on behalf of the individual; and

(3) An irrevocable trust that contain s the assets of an individual who is disabled and which meets the following conditions:

(a) The trust is established and managed by a nonprofit association;

(b) The association maintain s the individual's assets in a separate account but may pool the individual's account with others for purposes of investments and the management of funds;

(c) The accounts in the pool are established solely for the benefit of individuals who are disabled and by the individual, the individual's parent, grandparent, legal guardian, or by the court;

(d) The trust provide s that upon the death of the individual or termination of the trust during the individual's lifetime, whichever is sooner, the department shall receive any amounts remaining in the individual's trust subaccount up to an amount equal to the total medical assistance paid on behalf of the beneficiary. The association may retain reasonable administrative fees and expenses, not to exceed the annual amount normally charged by the association for that trust subaccount; and

(e) Funds of an individual age 65 or older that are transferred to this trust are subject to the transfer penalty provisions contained in chapter 67:46:05.

Source: 21 SDR 162, effective March 23, 1995; 36 SDR 215, effective July 1, 2010; 46 SDR 50, effective October 10, 2019.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Determination of disability, § 67:46:03:18.

67:46:05:32.04. Trust waived under certain circumstances. If an individual is determined ineligible because of a trust, the department may waive its consideration of the trust as an available resource if the individual can clearly show that all efforts have been made to recover assets placed into the trust and the individual's continuing care or well-being is seriously threatened because of the ineligibility for long-term care assistance.

Source: 21 SDR 162, effective March 23, 1995.

General Authority: SDCL 28-6-1 , 28-6-3.1.

Law Implemented: SDCL 28-6-3.1.

Cross-Reference: Disposal of resources for purposes of establishing eligibility, § 67:46:05:06.

67:46:05:32.05. Trustee required to provide annual accounting. The trustee must provide the department with an annual accounting of the trust’s financial transactions. Failure to provide the accounting may result in ineligibility for the beneficiary.

Source: 31 SDR 107, effective February 1, 2005.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:33. Medicaid-qualifying trust. A Medicaid-qualifying trust is a nontestamentary trust or a similar legal device established before August 11, 1993, by the individual or the individual's spouse or by someone acting on the individual's or spouse's behalf that uses the individual's or spouse's funds. Under the terms of the trust, the individual may be the beneficiary of all or part of the payments from the trust or similar legal device and the distribution of payments is determined by one or more trustees who are permitted to exercise discretion regarding the distribution to the individual.

This section applies regardless of the purpose for which the trust was established.

Source: 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:18.01, effective August 23, 1992; 20 SDR 170, effective April 21, 1994.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References: Disposal of resources for purposes of establishing eligibility, § 67:46:05:06; Treatment of potential payments from Medicaid qualifying trusts, 42 U.S.C. § 1396(a)(k).

67:46:05:33.01. Medicaid income trust. A Medicaid income trust is a nontestamentary trust or a similar legal device established after August 10, 1993, for the sole benefit of the beneficiary. A Medicaid income trust must meet the following requirements:

(1) It is composed only of the beneficiary's own pension, social security, or other income;

(2) It requires the trustee, without option or discretion, to pay monthly to the beneficiary the amount of income paid into the trust. However, the amount paid to the beneficiary may not exceed 300 percent of the maximum SSI standard benefit amount when added to the beneficiary's other monthly income not paid into the trust;

(3) It requires the trustee to pay monthly to the nursing facility, HCBS, or HCBWS provider the amount of income remaining in the trust to reduce the payment amount needed from the department. However, the trustee may encroach upon income remaining in the trust for the direct administration of the trust and for items necessary for the beneficiary's health if such items are not covered by medical assistance or the long-term care facility; and

(4) It provides that upon the death of the individual and before any other distribution is made from the trust, the department must receive all amounts remaining in the trust up to an amount equal to the total medical assistance paid on behalf of the beneficiary after September 30, 1993.

If income placed in the trust exceeds the amount paid out of the trust for medical services, the excess is subject to penalties under the transfer of assets provisions in this chapter.

Source: 20 SDR 170, effective April 21, 1994; 30 SDR 193, effective June 13, 2004; 31 SDR 107, effective February 1, 2005.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References:

SSI standard benefit amount, § 67:46:04:13.

Definition of HCBS, § 67:54:04:01.

Definition of HCBWS, § 67:44:03:01.

67:46:05:34. Resource available under Medicaid-qualifying trust. The amount considered available to an individual from a Medicaid-qualifying trust is the maximum undistributed amount that may be permitted under the terms of the trust assuming the full exercise of discretion by the trustee, whether or not discretion is exercised. The maximum amount available is a resource.

Source: 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:18.02, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Treatment of potential payments from Medicaid qualifying trusts, 42 U.S.C. § 1396(a)(k).

67:46:05:35. Bank accounts. Deposits in a bank, savings and loan, or similar institution are considered liquid resources whether they are in the form of a checking or savings account or a certificate of deposit. Deposits held in joint accounts are considered available to the applicant or recipient when the applicant or recipient has control or can direct the disposition of funds from the accounts. Accounts held in joint ownership with other eligible individuals are divided equally among the eligible individuals. Deposits counted as income in the month the income was received are not a countable resource until the month following the month of receipt of the income.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:20:19, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:36. Savings bonds. Savings bonds are considered a liquid asset to the extent of their current value. Bonds held in co-ownership with another person are deemed available to the applicant or recipient when the applicant or recipient is the actual purchaser or has the authority to cause the bond to be cashed. Bonds purchased with money that was counted as income in the month the income was received are not a countable resource until the month following the month of receipt of the income.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; transferred from § 67:16:20:20, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:37. Life insurance. The department shall exclude a life insurance policy if an individual owns the policy and the policy has a face value of $1,500 or less. If the face value of the policy exceeds $1,500 the cash surrender value is considered a resource. If the individual owns more than one life insurance policy on the same insured, the face value of all the policies must be added together. If the total of the face values exceed $1,500, the cash surrender value of all the policies is considered a resource. The $1,500 face value exclusion applies to each individual separately. Life insurance policies which do not have a cash surrender value, such as term insurance and burial insurance which by its terms can only be used to pay the burial expenses of the insured, are not included when determining the total value of all policies.

Dividend accumulations received but left in the custody of the insurer to accumulate interest are not a value of the policy but are considered a resource.

Dividends reverted to increase the policy death benefit and cash surrender value are considered policy additions and are not included in the face value when determining whether a policy is a countable or excluded resource. If the policy is a countable resource, the cash surrender value of these dividends is included in the resource value of the policy. If the policy is excluded as a resource the cash surrender value of these dividends is not considered when determining the individual's countable resources.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:21, effective August 23, 1992; 35 SDR 166, effective December 24, 2008.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:38. Stocks , notes, loans, and mortgages. The department shall include as a resource and subject to the limits of § 67:46:05:30, stocks, mutual fund shares, promissory notes, mortgages, loans, or municipal, corporate, or government bonds owned by the applicant or recipient which can be sold or discounted. The amount included as a resource is the amount for which they can be sold or discounted and must be the highest estimated money price which the stocks, notes, mortgages, or bonds will bring if offered for sale in the open market.

After March 31, 2006, funds used to purchase a promissory note, make a loan, or carry a mortgage on property sold by the applicant or recipient is considered to be a transfer of an asset for less than fair market value unless the promissory note, loan, or mortgage meets the requirements of 42 U.S.C. § 1396p(c)(1)(I), as amended to August 1, 2006. If the department determines that the promissory note, loan, or mortgage was transferred for less than fair market value, the value of the note, loan, or mortgage is the outstanding balance due as of the date of the individual's application for long-term care assistance.

Nothing in this rule prevents the department from considering promissory notes, loans, and mortgages made or purchased before April 1, 2006, as a transfer of an asset for less than fair market value according to § 67:46:05:06.

Source: 2 SDR 74, effective May 13, 1974; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:20:22, effective August 23, 1992; 33 SDR 44, effective August 31, 2006.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:39. Irrevocable prepaid burial contracts. Irrevocable prepaid burial contracts between an applicant or recipient and another person for the purpose of defraying burial expenses shall be excluded as a resource.

Source: 2 SDR 74, effective May 13, 1976; 5 SDR 109, effective July 1, 1979; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; transferred from § 67:16:20:24, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References: Prearranged funeral trusts, ch 55-11.

67:46:05:40. Income not spent in month received. Income received during a month that is not spent but is actually saved becomes a resource in the following month.

Source: 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; transferred from § 67:16:20:25, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:41. Distinguishing resources from income. Resources are those assets an individual or couple already has at the beginning of a month or at the time of application which are not counted as income for that month. Income, in general, is money received by an individual or couple during a particular month.

Source: 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; transferred from § 67:16:20:26, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:42. Resources considered. For purposes of determining eligibility for long-term care services or medical assistance, the department considers resources according to the following:

(1) For an unmarried individual, the department considers only the individual's resources;

(2) For a child born in a hospital and continuously hospitalized for 30 or more consecutive days from the date of birth, the department considers only the resources available to the child during this confinement. The parent's or stepparent's resources are not considered;

(3) For a child who does not meet the criteria contained in subdivision (2) of this section, the department considers the parent's or stepparent's resources available to the child in the calendar month of entry to the hospital, nursing facility, or intermediate care facility. After the calendar month of entry, the department considers only the resources of the parent or stepparent that are actually contributed to the child;

(4) For a married individual who entered a hospital, nursing facility, or intermediate care facility before September 30, 1989, and who since September 30, 1989, has not had 30 consecutive days out of the facility, the department considers only those resources owned by the applicant;

(5) For a married couple of which only one spouse enters a hospital, nursing facility, or intermediate care facility but is not expected to remain there for 30 consecutive days, the department considers the couple's combined resources available to each other. If the spouse's stay exceeds 29 days, the requirements of chapter 67:46:07 apply;

(6) For a married couple of which only one spouse participates in either an HCBS or HCBWS program but is not expected to receive services for 30 consecutive days, the department considers the couple's combined resources available to each other. If the spouse's participation in HCBS or HCBWS exceeds 29 days, the requirements of chapter 67:46:07 apply;

(7) For a married couple living together during the calendar month that one spouse enters into assisted living or adult foster care, the department considers the couple's combined resources available to each other in the calendar month of entry. After the calendar month of entry, the department considers only those resources owned by the applicant. If the spouse is entering an assisted living facility and is receiving HCBS or HCBWS, the provisions of subdivision (5) apply; and

(8) For a married couple of which both spouses enter a nursing facility during the same calendar month, the department considers the couple's combined resources available to each other for the calendar month of entry. After the calendar month of entry, their resources are considered separately regardless of room occupancy.

Source: 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; 11 SDR 34, effective September 6, 1984; 12 SDR 153, effective March 23, 1986; 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:27, effective August 23, 1992; 20 SDR 92, effective December 21, 1993; 20 SDR 170, effective April 21, 1994; 30 SDR 193, effective June 13, 2004; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References:

Resource limit, § 67:46:05:30.

Community spouses, ch 67:46:07.

Definition of HCBS, § 67:54:04:01.

Definition of HCBWS, § 67:44:03:01.

67:46:05:43. Time of resource eligibility determination. An applicant's resource eligibility is determined as of 12:01 a.m. on the first day of the month of application. A recipient's resource eligibility is redetermined as of 12:01 a.m. on the first day of each month. If the applicant's or recipient's resources exceed the maximum resource limit as of 12:01 a.m. on the first day of the month but is within the limit at some time during the month, the applicant or recipient is resource eligible for the entire month.

Source: 9 SDR 133, effective April 27, 1983; transferred from § 67:16:20:28, effective August 23, 1992; 30 SDR 193, effective June 13, 2004.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References: Responsibility for information, § 67:46:03:01; Separate burial funds excluded from resources, § 67:46:05:45.

67:46:05:44. Burial spaces excluded from resources. Burial spaces owned by the applicant or recipient are excluded from resources if intended for use by any of the following individuals:

(1) The applicant or recipient and the applicant's or recipient's spouse;

(2) The applicant's or recipient's minor and adult children, stepchildren, and adopted children; or

(3) The applicant's or recipient's brothers, sisters, parents, adoptive parents, and the spouses of these persons.

Burial spaces include gravesites, crypts, mausoleums, urns or other repositories, caskets, concrete vaults, and grave markers. If burial space items are listed in a contract for services for a future need, these are classified as burial funds under § 67:46:05:45.

Source: 9 SDR 133, effective April 27, 1983; transferred from § 67:16:20:29, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Resources defined -- Burial plots, 20 C.F.R. § 416.1201(a)(1).

67:46:05:45. Separate burial funds excluded from resources. Funds up to $1,500 each for the applicant or recipient and the applicant's or recipient's spouse may be separately set aside for burial and excluded from the applicant's or recipient's resources. Funds separately set aside for burial include revocable burial contracts, burial trusts, or any other separately identifiable assets intended for burial expenses. If the funds are mixed with other resources not intended for burial, the exclusion does not apply to any portion of the funds and the funds shall be treated as nonexcluded resources.

The separate funds shall be clearly designated as burial funds. If the separate funds are not clearly designated, the funds may be excluded if the applicant states that the applicant intends to use the funds for burial and submits documentary evidence of clearly designated funds within 30 days from the date of application. This is an exception to § 67:46:05:43.

Source: 9 SDR 133, effective April 27, 1983; transferred from § 67:16:20:30, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:46. Increase in value of excluded burial funds. An increase in the value of excluded burial funds due to interest which was left to accumulate and become a part of a separately identifiable burial fund is excluded from resources.

An increase in the value of an excluded burial space is excluded from resources.

Source: 9 SDR 133, effective April 27, 1983; 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:31, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:47. Reductions to separate burial funds. The $1,500 amount for separate burial funds allowed by § 67:46:05:45 shall be reduced by the equity value of an irrevocable burial trust, contract, or other irrevocable arrangement which is available to meet the applicant's or recipient's burial expenses and the face value of an insurance policy of $1,500 or less on the applicant's or recipient's life if the policy is owned by the applicant or recipient or the applicant's or recipient's spouse and if the cash surrender value of the policy has been excluded from resources under § 67:46:05:30.

Source: 9 SDR 133, effective April 27, 1983; transferred from § 67:16:20:32, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References:

Resource limit, § 67:46:05:30.

Separate burial funds excluded from resources, § 67:46:05:45.

Life insurance, § 67:46:05:37.

67:46:05:48. Pension funds. Repealed.

Source: 15 SDR 2, effective July 17, 1988; transferred from § 67:16:20:33, effective August 23, 1992; repealed, 41 SDR 93, effective December 3, 2014.

67:46:05:49. Retroactive SSI and retroactive retirement, survivors, and disability income payments. Retroactive SSI payments and retroactive retirement, survivors, and disability income payments are excluded from resources for nine calendar months following the month of receipt.

Source: 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:34, effective August 23, 1992; 20 SDR 92, effective December 21, 1993; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:50. Exclusion of agent orange settlement payments. Payments received pursuant to the agent orange product liability settlement are excluded from resources.

Source: 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:35, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References: Pub. L. No. 101-201; Pub. L. No. 101-239.

67:46:05:51. Assets held in common with another person. If an asset is held by an individual in common with another person in joint tenancy, tenancy in common, or similar arrangement, the asset or the affected portion of the asset is considered to have been transferred by the individual when any action by any of the individuals listed in § 67:46:05:32.01 reduces or eliminates the individual's ownership or control of the asset.

When this occurs, the department shall establish a period of ineligibility under the provisions of this chapter.

The provisions of SDCL 43-46-1 and chapter 67:48:02 apply if an individual who has died had received medical benefits and had assets which were held in common with another person.

Source: 21 SDR 162, effective March 23, 1995; 24 SDR 86, effective January 1, 1998

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:52. Disclosure of annuities. An individual applying for long-term care medical assistance and an individual whose eligibility is being reviewed for purposes of determining whether the individual continues to be eligible for long-term care assistance must disclose the description of any interest the individual or the individual's spouse has in an annuity or similar financial instrument. Failure to disclose this information results in ineligibility for assistance.

Source: 33 SDR 44, effective August 31, 2006.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Disclosure of annuities required, 42 U.S.C. § 1396lp( e)(1).

67:46:05:53. Annuities -- Department becomes remainder beneficiary. Pursuant to 42 U.S.C. § 1396p(e), as amended to August 1, 2006, the department becomes a preferred remainder beneficiary of any interest the individual or the individual's spouse has in an annuity or similar financial instrument purchased and owned after February 7, 2006.

Source: 33 SDR 44, effective August 31, 2006.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:05:54. Treatment of annuities. Repealed .

Source: 33 SDR 44, effective August 31, 2006; 35 SDR 166, effective December 24, 2008; 45 SDR 82, effective December 10, 2018.

67:46:05:55. Treatment of admission or entrance fee of applicant or recipient residing in continuing care retirement or life care community. The entrance or admission fee for an applicant or recipient residing in a continuing care retirement or life care community is a countable resource to the extent that:

(1) The applicant or recipient can use the entrance or admission fee to pay for care if other resources or income of the applicant or recipient are insufficient to pay for such care;

(2) The applicant or recipient is eligible for a refund of any remaining entrance fee when the individual dies or terminates the continuing care retirement or life care community contract and leaves the community; and

(3) The entrance fee does not confer an ownership interest in the continuing care retirement or life care community.

For purposes of this section, an admission or entrance fee is a fee that a state licensed, continuing care retirement or life care community requires an individual to pay as a condition of admission before applying for medical services. For purposes of this section, continuing care retirement or life care community is an arrangement under which housing and health-related services are provided or arranged through an organization for the enrollee under an agreement that is effective for the life of the enrollee or for a specified period.

Source: 33 SDR 44, effective August 31, 2006.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Treatment of entrance fees of individuals residing in continuing care retirement communities, 42 U.S.C. § 1396p( g).

CHAPTER 67:46:06

BUDGETING FOR LONG-TERM CARE

Section

67:46:06:01 Scope of chapter.

67:46:06:02 Definitions.

67:46:06:03 Income for determining long-term care assistance.

67:46:06:04 Supplemental payment to long-term care facility.

67:46:06:05 Deduction for personal needs.

67:46:06:06 Deduction for premiums.

67:46:06:07 Deduction for dependents -- No community spouse.

67:46:06:08 Repealed.

67:46:06:09 Treatment of income for less than a full month's residence.

67:46:06:10 Basis of payment for program benefits.

67:46:06:11 Payment made to facility or representative payee.

67:46:06:12 Deduction for home maintenance.

67:46:06:01. Scope of chapter. Rules contained in this chapter are applied after financial eligibility is established according to chapter 67:46:04 and are used to determine the amount of long-term care assistance an individual is eligible to receive from the department.

Source: 9 SDR 133, effective April 27, 1983; transferred from § 67:16:21:00, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:06:02. Definitions. Terms used in this chapter have the same meaning as those defined in § 67:46:04:02.

Source: 2 SDR 74, effective May 13, 1976; 5 SDR 109, effective July 1, 1979; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 9 SDR 133, effective April 27, 1983; transferred from § 67:16:21:01, effective August 23, 1992; 34 SDR 322, effective July 1, 2008; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:06:03. Income for determining long-term care assistance. For purposes of determining the amount of long-term care assistance, income is considered according to subdivisions 67:46:04:03(1) to (5), inclusive; §§ 67:46:04:04, 67:46:04:06 and 67:46:04:08 to 67:46:04:10, inclusive.

Source: 2 SDR 74, effective May 13, 1976; 4 SDR 10, effective August 28, 1977; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; transferred from § 67:16:21:02, effective August 23, 1992; 20 SDR 170, effective April 21, 1994; 41 SDR 93, effective December, 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:06:04. Supplemental payment to long-term care facility. The department shall pay a participating home and community based waiver provider or nursing facility for amounts not covered by an eligible individual's own income, insurance, a responsible third party or other state or federal assistance programs.

Source: 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; transferred from § 67:16:21:02.01, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Basis of payment for program benefits, § 67:46:06:10.

    67:46:06:05 .  Deduction for personal needs. An applicant or recipient residing in a nursing or intermediate care facility is allowed :

    (1)  A deduction of one hundred dollars per month to cover personal needs ;

    (2)  If earning income, an additional deduction for personal needs up to a maximum of the first seventy-five dollars of gross earned income per month; and

    (3)  If paying court-ordered child or spousal support, an additional deduction for personal needs up to the amount of child or spousal support actually paid out, not to exceed the court-ordered amount.

    Source: 2 SDR 74, effective May 13, 1976; 5 SDR 109, effective July 1, 1979; 7 SDR 76, effective February 11, 1981; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; 15 SDR 2, effective July 17, 1988; transferred from § 67:16:21:03, effective August 23, 1992; 19 SDR 141, effective March 25, 1993; 30 SDR 193, effective June 13, 2004; SL 2004, ch 186, § 1, effective July 1, 2004; 41 SDR 93, effective December 3, 2014 ; 51 SDR 3, effective June 30, 2024 .

    General Authority: SDCL 28-6-1 .

    Law Implemented: SDCL 28-6-1 (6) .

67:46:06:06. Deduction for premiums. If an applicant's or recipient's income is used to pay the applicant's or recipient's health insurance premiums, the department allows a deduction from the income for the amount paid. The premium may be for participation in the Medicare program or for private health insurance, or both. For the purpose of deducting premiums from income, private health insurance is restricted to those policies which insure payment for medical services rendered and medical expenses incurred. It does not include a policy which insures an income supplement while an individual is disabled. The policy must directly assist in the payment of medical expenses. If a person is receiving benefits from an income supplement insurance policy for a disability and the policy is not includable under the criteria in this section, the premium payment made is deductible from income when the payment is necessary to continue benefits.

Source: 2 SDR 74, effective May 13, 1976; 4 SDR 10, effective August 28, 1977; 7 SDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; transferred from § 67:16:21:04, effective August 23, 1992; 19 SDR 141, effective March 25, 1993.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:06:07. Deduction for dependents -- No community spouse. If a recipient does not have a community spouse, as defined in SDCL 28-6-16 , but the recipient's home is maintained for a dependent relative, a deduction from the recipient's income necessary to maintain a minimum income level for such a dependent is allowed based on family size. The deduction is determined by taking 100 percent of the need standard for independent living set in § 67:12:06:04.01.

The need standard for the family size, minus any other income the dependent relative may have, is then deducted from the recipient's income. When determining the amount of the dependent's income, §§ 67:46:04:01 to 67:46:04:09, inclusive, apply.

For purposes of this rule, a dependent relative is a son, daughter, granddaughter, grandson, stepson, stepdaughter, mother, father, stepmother, stepfather, half sister, half brother, niece, nephew, grandmother, grandfather, aunt, uncle, sister, brother, stepbrother, stepsister, first cousin, relatives of the preceding generation denoted by the prefixes of grand, great, or great-great; first cousin once removed; and great-great-great grandparent, and spouses of any of the relatives specified, even though the marriage is terminated by death or divorce, who is not currently receiving SSI.

Source: 2 SDR 74, effective May 13, 1976; 4 SDR 10, effective August 28, 1977; 5 SDR 109, effective July 1, 1979; 7 SDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; 13 SDR 8, effective August 3, 1986; 15 SDR 2, effective July 17, 1988; 16 SDR 203, effective May 27, 1990; transferred from § 67:16:21:07, effective August 23, 1992; 20 SDR 92, effective December 21, 1993; 21 SDR 162, effective March 23, 1995; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References: In-kind shelter considered unearned income -- Dependent living arrangement, § 67:12:06:12; Institutionalized, aged, blind, or disabled individuals; determination of countable income, 42 C.F.R. § 435.733.

67:46:06:08. Supplemental security income. Repealed.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; transferred from § 67:16:21:09, effective August 23, 1992; repealed, 41 SDR 93, effective December 3, 2014.

67:46:06:09. Treatment of income for less than a full month's residence. Whenever the residence period in a long-term care facility is less than a full month, the recipient's income shall not be applied toward the cost of care unless the recipient died or transferred to another long-term care facility. In the event of death or transfer, the income shall be used as a credit toward the cost of care.

Source: 8 SDR 170, effective June 21, 1982; transferred from § 67:16:21:11, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:06:10. Basis of payment for program benefits. Payment for program benefits shall be based on the difference between the individual's available income and the monthly rate for the provider of the individual's choice, in accordance with the provisions of this chapter and the provisions of chapter 67:46:07, if applicable.

Source: 8 SDR 170, effective June 21, 1982; 16 SDR 203, effective May 27, 1990; transferred from § 67:16:21:12, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:06:11. Payment made to facility or representative payee. For an individual residing in a nursing or intermediate care facility, the department issues long-term care assistance payments directly to the facility. For an individual residing in assisted living and not receiving HCBS or HCBWS, or for an individual residing in adult foster care, the department issues assistance payments to the individual with the facility as the representative payee. For an individual receiving HCBS or HCBWS, the department issues payments directly to the provider of the services.

Source: 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; transferred from § 67:16:21:13, effective August 23, 1992; 20 SDR 92, effective December 21, 1993; 20 SDR 170, effective April 21, 1994; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References: Definition of HCBS, § 67:54:04:01; Definition of HCBWS, § 67:44:03:01.

67 : 46 : 06 : 12 . Deduction for home maintenance. An applicant or recipient residing in a nursing or intermediate care facility is allowed a deduction in the amount of the SSI benefit standard minus $60 for the maintenance of the home of the individual or couple for not longer than 6 months if a physician has certified that the individual, or one member of the institutionalized couple, is likely to return to the home within that period.

Source: 43 SDR 31 , effective September 12, 2016 .

General Authority: SDCL 28 - 6 - 1.

Law Implemented: SDCL 28-6-1.

CHAPTER 67:46:07

COMMUNITY SPOUSES

Section

67:46:07:01 Definitions.

67:46:07:02 Assessment of community spouse's share of resources.

67:46:07:03 Repealed.

67:46:07:04 Application of existing resource rules to spousal share of resources.

67:46:07:05 Long-term care eligibility.

67:46:07:06 Initial month of eligibility.

67:46:07:07 Retroactive eligibility.

67:46:07:08 Consideration of resources at time of redetermination of eligibility or reapplication for assistance.

67:46:07:09 Determination of amount of long-term care assistance for institutionalized spouse.

67:46:07:10 Order of deductions from institutionalized spouse's income.

67:46:07:11 Deduction for maintenance of community spouse.

67:46:07:12 Computation of community spouse's maintenance allowance and excess shelter allowance.

67:46:07:13 Deduction for maintenance of dependents living with community spouse.

67:46:07:14 Determination of income of community spouse and dependents.

67:46:07:15 Loss of community spouse status.

67:46:07:16 Repealed.

67:46:07:17 Fair hearings.

67:46:07:01. Definitions. Terms defined in SDCL 28-6-16 have the same meaning in this chapter. In addition, terms used in this chapter mean:

(1) "Initial eligibility," the original determination of eligibility during a continuous period of institutionalization.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:01, effective August 23, 1992.

General Authority: SDCL 28-6-1 , 28-6-18.

Law Implemented: SDCL 28-6-1 , 28-6-18.

67:46:07:02. Assessment of community spouse's share of resources. The department shall assess a couple's combined countable resources to determine the community spouse's share if all of the following occur:

(1) An application for assistance with nursing facility or home and community based waiver services has been made or an institutionalized spouse, the community spouse, or the couple's authorized representative has requested the assessment;

(2) The institutionalized spouse was admitted to a hospital, nursing facility, or intermediate care facility or began receiving home and community based waivered services after September 29, 1989, and is expected to remain in the facility or continue receiving home and community-based waivered services for at least 30 consecutive days; and

(3) The institutionalized spouse has a community spouse.

The department must complete the assessment within 45 days of the request unless delay is due to nonreceipt of documentation or verification from the requesting party or a third party. The department may not use the time standard as a waiting period or reason for not completing the assessment if documentation has been provided.

The department shall apply the provisions of chapter 67:46:05 if the spouse is entering an assisted living facility and is not receiving HCBS or HCBWS or is entering an adult foster care facility.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:02, effective August 23, 1992; 30 SDR 193, effective June 13, 2004; 41 SDR 93, effective December 3, 2014; 43 SDR 31, effective September 12, 2016.

General Authority: SDCL 28-6-1 , 28-6-18.

Law Implemented: SDCL 28-6-1 , 28-6-18.

Cross-References: Definition of HCBS, § 67:54:04:01; Definition of HCBWS, § 67:44:03:01.

67:46:07:03. Determination of spousal share. Repealed .

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:03, effective August 23, 1992; 30 SDR 166, effective July 1, 2004; 31 SDR 107, effective February 1, 2005; 33 SDR 124, effective January 2, 2007; 34 SDR 271, effective April 17, 2008; 35 SDR 234, effective April 1, 2009; 41 SDR 7, effective July 29, 2014; 41 SDR 218, effective June 30, 2014; 41 SDR 218, effective June 30, 2015; 44 SDR 94, effective December 4, 2017; 45 SDR 82, effective December 10, 2018.

67:46:07:04. Application of existing resource rules to spousal share of resources. When determining the spousal share of resources, the department shall apply the rules established in chapter 67:46:05 to both the institutionalized spouse and the community spouse.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:04, effective August 23, 1992.

General Authority: SDCL 28-6-1 , 28-6-18.

Law Implemented: SDCL 28-6-1 , 28-6-18.

67:46:07:05. Long-term care eligibility. Individuals wishing to apply for long-term care assistance must apply as provided in chapter 67:46:02.

Eligibility other than financial shall be determined according to chapters 67:46:01 and 67:46:03.

Financial eligibility shall be determined according to chapters 67:46:04 and 67:46:05.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:05, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1 , 28-6-18.

Law Implemented: SDCL 28-6-1 , 28-6-18.

67:46:07:06. Initial month of eligibility. When determining initial eligibility for long-term care assistance for an institutionalized spouse in a nursing or intermediate care facility or who is receiving HCBS or HCBWS, the community spouse's share must be deducted from the couple's total countable resources.

If the institutionalized spouse was a former recipient during the same continuous period of institutionalization, provisions of § 67:46:07:08 apply.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:06, effective August 23, 1992; 30 SDR 193, effective June 13, 2004.

General Authority: SDCL 28-6-1 , 28-6-18.

Law Implemented: SDCL 28-6-1 , 28-6-18.

Cross-References: Definition of HCBS, § 67:54:04:01; Definition of HCBWS, § 67:44:03:01.

67:46:07:07. Retroactive eligibility. When determining retroactive eligibility at the time of the initial eligibility determination, the department shall deduct the community spouse's share from the couple's combined countable resources for each of the three retroactive months.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:07, effective August 23, 1992.

General Authority: SDCL 28-6-1 , 28-6-18.

Law Implemented: SDCL 28-6-1 , 28-6-18.

67:46:07:08. Consideration of resources at time of redetermination of eligibility or reapplication for assistance. At the time of redetermination of eligibility or reapplication for long-term care assistance during a continuous period of institutionalization, resources held by the institutionalized spouse shall be considered for eligibility according to chapter 67:46:05.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:08, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1 , 28-6-18.

Law Implemented: SDCL 28-6-1 , 28-6-18.

Cross-Reference: Annual redetermination of eligibility, § 67:46:02:08.

67:46:07:09. Determination of amount of long-term care assistance for institutionalized spouse. Sections 67:46:07:10 to 67:46:07:13, inclusive, and chapter 67:46:06, except for §§ 67:46:06:02, 67:46:06:03, and 67:46:06:07, shall be used to determine the amount of long-term care assistance the institutionalized spouse is eligible to receive from the department.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:09, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1 , 28-6-18.

Law Implemented: SDCL 28-6-1 , 28-6-18.

67:46:07:10. Order of deductions from institutionalized spouse's income. Deductions from the income of the institutionalized spouse shall be allowed in the following order:

(1) The personal needs allowance specified in § 67:46:06:05;

(2) The spousal maintenance and excess shelter allowance specified in § 67:46:07:12;

(3) The maintenance allowance for dependents living with the community spouse as specified in § 67:46:07:13;

(4) The deduction for premiums paid on health insurance policies according to § 67:46:07:04; and

(5) Unpaid medical expenses incurred during a period which is no more than three months prior to the month of the most recent application for long term care services. The expenses must have been for necessary medical or remedial care services recognized under state law and prescribed by a physician that are not covered by Medicaid or any third party.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:10, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1 , 28-6-18.

Law Implemented: SDCL 28-6-1 , 28-6-18.

67:46:07:11. Deduction for maintenance of community spouse. The institutionalized spouse is allowed a deduction from the institutionalized spouse's income for the maintenance needs of the community spouse. The deduction is that amount remaining after subtracting the community spouse's monthly income from the maintenance allowance and any excess shelter allowance.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:11, effective August 23, 1992.

General Authority: SDCL 28-6-1 , 28-6-18.

Law Implemented: SDCL 28-6-1 , 28-6-18.

    67:46:07:12 .  Computation of community spouse's maintenance allowance and excess shelter allowance. The community spouse's monthly minimum maintenance allowance is one hundred fifty percent of the federal poverty income level , established in accordance with § 67:11:01:03 , for two persons , divided by twelve .

    The excess shelter allowance is determined by subtracting thirty percent of the minimum maintenance allowance from the community spouse's shelter costs. Shelter costs include rent or mortgage costs, trailer parking space fees, taxes and insurance on the premises, and condominium or cooperative maintenance charges for the couple's principal residence. Shelter costs also include the applicable supplemental nutrition assistance program utility allowance pursuant to § 67:13:01:02 , 67:13:01:05 , or 67:13:01:06 .

    Rent, mortgage, taxes, insurance, and condominium and cooperative maintenance charges paid less frequently than monthly are prorated.

    The combined spousal allowances may not exceed four thousand sixty-six dollars and fifty cents, unless a greater allowance is provided for under a court order of support , or if , through the fair hearing process , it is determined that a greater need exists because of circumstances resulting in financial duress.

    These allowances are not permissible if the institutionalized spouse does not make the income available to the community spouse.

    Source: 16 SDR 203, effective May 27, 1990 and July 1, 1990; transferred from § 67:16:32:12, effective August 23, 1992; 19 SDR 141, effective March 25, 1993; 20 SDR 92, effective December 21, 1993; 20 SDR 170, effective April 21, 1994; 21 SDR 162, effective March 23, 1995; 31 SDR 107, effective February 1, 2005; 33 SDR 124, effective January 2, 2007; 34 SDR 271, effective April 17, 2007; 35 SDR 234, effective April 1, 2009; 41 SDR 7, effective July 29, 2014; 41 SDR 93, effective December 3, 2014; 41 SDR 218, effective June 30, 2015; 44 SDR 94, effective December 4, 2017; 47 SDR 24, effective September 10, 2020 ; 47 SDR 138, effective July 1, 2021; 48 SDR 131, effective July 4, 2022; 49 SDR 125, effective July 3, 2023; 51 SDR 3, effective June 30, 2024; 51 SDR 140, effective June 30, 2025; 52 SDR 125, effective July 1, 2026 .

    General Authority: SDCL 28-6-1 , 28-6-18 .

    Law Implemented: SDCL 28-6-1 (4)(6) , 28-6-1 7, 28-6-18 (6) .

67:46:07:13. Deduction for maintenance of dependents living with community spouse. The institutionalized spouse is allowed a deduction from the institutionalized spouse's income for the maintenance needs of dependents living with the community spouse. The allowable deduction is an amount equal to the standard community spouse's maintenance allowance determined according to § 67:46:07:12, minus the dependents' monthly income, the result divided by one-third.

This deduction is permissible even if the institutionalized spouse does not make the allowance available.

If a greater income allowance is specified under court order or through the fair hearing process, the greater amount shall be used in place of the limits in this section.

For purposes of this rule, the term "dependent" only includes minor or dependent children, dependent parents, or dependent siblings of the institutionalized or community spouse, including half-blood or adopted, who are living with and may be claimed by either spouse for income tax purposes.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:13, effective August 23, 1992.

General Authority: SDCL 28-6-1 , 28-6-18.

Law Implemented: SDCL 28-6-1 , 28-6-18.

67:46:07:14. Determination of income of community spouse and dependents. When determining income for the community spouse or dependent, the department shall apply §§ 67:46:04:01 to 67:46:04:09, inclusive.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:14, effective August 23, 1992.

General Authority: SDCL 28-6-1 , 28-6-18.

Law Implemented: SDCL 28-6-1 , 28-6-18.

67:46:07:15. Loss of community spouse status. When a change in circumstances results in an individual no longer having a community spouse or an institutionalized spouse, the community spouse status is considered lost at the beginning of the first full calendar month following the change in circumstance.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:15, effective August 23, 1992.

General Authority: SDCL 28-6-1 , 28-6-18.

Law Implemented: SDCL 28-6-1 , 28-6-18.

67:46:07:16. Medical eligibility for community spouse or dependent. Repealed.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:16, effective August 23, 1992; repealed, 41 SDR 93, effective December 3, 2014.

67:46:07:17. Fair hearings. If either spouse is dissatisfied with the determinations made under this chapter, a fair hearing may be requested only after the conditions contained in SDCL 28-6-17 have been met. Fair hearings shall be conducted according to chapter 67:17:02.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:17, effective August 23, 1992.

General Authority: SDCL 28-6-1 , 28-6-18.

Law Implemented: SDCL 28-6-1 , 28-6-18.

CHAPTER 67:46:08

LONG-TERM CARE NOTICE REQUIREMENTS

Section

67:46:08:01 Required timely and adequate notice.

67:46:08:02 Adequate notice to applicants.

67:46:08:03 Suspension of timely notice and the application of adequate notice.

67:46:08:04 Repealed.

67:46:08:05 Notice of right to request waiver of period of ineligibility -- Assets transferred at less than fair market value -- Ineligibility due to home equity limit.

67:46:08:01. Required timely and adequate notice. Timely and adequate notice shall be mailed to each recipient detailing the reason for a proposed action which may result in termination or reduction of payment or inability to authorize payment. The notice shall inform the recipient of any changes in federal or state law requiring automatic grant adjustments for classes of recipients and of a change in the manner or form of payment to a protective, vendor, or two-party payment. This notice shall state the specific regulations supporting the action taken and explain the individual's right to and procedure for requesting a fair hearing, the right to be represented by others at the hearing, and the time in which a hearing may be requested. This timely notice shall be mailed ten days before the date of action, which is the date when the recipient would normally receive an assistance check or, in the case of a Medicaid recipient, ten days before the intended change would be effective. In cases of probable fraud, notice of a proposed action which may result in termination or reduction of payment or inability to authorize payment shall be considered timely if mailed at least five days before the action would become effective. This notice shall also explain the circumstances under which assistance may be continued if a hearing is requested. Timely and adequate notice is not required when the recipient of a one-person case has died.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:22:01, effective August 23, 1992 ; 43 SDR 31, effective September 12, 2016 .

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:08:02. Adequate notice to applicants. A written notice to applicants for services under this article shall be sent at the time the decision is made approving or rejecting each application. This written notice shall include a statement of what action the agency intends to take, the reasons for the intended agency action, the specific regulations supporting such action, and an explanation of the individual's right to and procedure for requesting a fair hearing, the right to be represented by others at the hearing, and the time in which a hearing may be requested. This notice shall explain the individual's right under the Civil Rights Act of 1964. Nothing in this section shall be construed as indicating that the department will pay for legal fees for representing applicants at conferences or hearings held according to this section.

Source: 8 SDR 170, effective June 21, 1982; transferred from § 67:16:22:01.01, effective August 23, 1992 ; 43 SDR 31, effective September 12, 2016 .

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:08:03. Suspension of timely notice and the application of adequate notice. The department may dispense with timely notice as provided in § 67:46:08:01 and mail adequate notice to a recipient of long-term care assistance no later than the effective date of the intended change in any of the following situations:

(1) The department has factual information confirming the death of a recipient;

(2) The department receives a clear written statement signed by a recipient that the recipient no longer wishes assistance or that gives information which requires termination or reduction of assistance, and the recipient has indicated, in writing, that the recipient understands that this is the consequence of supplying such information;

(3) The change requires an adjustment to the budget and has no impact on the recipient's eligibility for benefits;

(4) The recipient's whereabouts are unknown and mail from the department directed to the recipient has been returned by the post office or facility indicating no known forwarding address;

(5) The recipient has been accepted for assistance in a nursing facility in a different state and that fact has been established by the department;

(6) A decision is made by the medical review team indicating a change in the level of care required by the recipient; and

(7) The recipient has been admitted to an institution where the recipient is ineligible for further services.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:22:02, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:08:04. Right to a conference. A recipient of long-term care whose assistance is being rejected, terminated, suspended, held, or reduced may request a conference or a hearing. The conference may not interfere with any time schedule established for requesting a fair hearing.

Source: 2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:22:03, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Fair hearings, ch 67:17:02.

67:46:08:05. Notice of right to request waiver of period of ineligibility -- Assets transferred at less than fair market value -- Ineligibility due to home equity limit. The department shall notify an individual if it intends to impose a period of ineligibility because an individual has transferred an asset for less than fair market value or is ineligible for long-term care assistance due to the home equity limit established in § 67:46:05:15. The notice shall specify the date of the intended action, information about how the individual can request a waiver of the period of ineligibility, and information on how to request a fair hearing.

Source: 33 SDR 44, effective August 31, 2006; 35 SDR 166, effective December 24, 2008.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References:

Ineligibility if assets transferred, § 67:46:05:09.02.

Period of ineligibility waived under certain circumstances, § 67:46:05:10.

Availability of hardship waivers, 42 U.S.C. § 1396p(c )( 2)(D).

Fair hearings, ch 67:17:02.

CHAPTER 67:46:09

DISABLED CHILDREN

Section

67:46:09:01 Definitions.

67:46:09:02 Repealed.

67:46:09:03 Repealed.

67:46:09:04 Eligibility requirements.

67:46:09:05 Physician's orders required.

67:46:09:06 Team to determine level of care.

67:46:09:07 Level of care -- Acute care hospital.

67:46:09:08 Level of care -- Specialized hospital.

67:46:09:09 Level of care -- Nursing facility.

67:46:09:10 Level of care -- ICF-IID.

67:46:09:11 Determination of intellectual disability.

67:46:09:12 Cost not to exceed cost of medical institutional care.

67:46:09:13 Reviews for continued eligibility.

67:46:09:14 Notice when case closed.

67:46:09:01. Definitions. Terms used in this chapter mean:

(1) "Active treatment," a continuous program of specialized training, treatment, health services, and related services provided to help an individual achieve the highest functioning level possible, but not services required to maintain generally independent individuals who are able to function with little supervision or in the absence of the continuous active treatment program;

(2) "Activities of daily living" or "ADL," physical functions which allow a person to live independently, including bathing, dressing, eating, toileting, and mobility according to an age appropriate assessment;

(3) "Developmental milestones," significant behavior that marks and delineates normal sequences of human development;

(4) "Disabled child program," a program for certain medically fragile and severely disabled children whose medical care needs would otherwise require the level of care provided in a medical institution;

(5) "ICF-IID," an intermediate care facility for individuals with intellectual disabilities as defined in § 67:54:03:01;

(6) "Medical institution," a hospital as defined under § 67:16:03:01; a facility licensed by the department of health under SDCL 34-12 as a specialized hospital with services limited to rehabilitation; a nursing facility as defined in § 67:45:01:01; or an intermediate care facility for individuals with intellectual disabilities;

(7) "Professional nursing services," nursing services which are provided by a professional nurse under the provisions of SDCL chapter 36-9 and §§ 20:48:04:01, 20:48:04:01.07, 20:48:04:01.11, 20:48:04:01.12; and

(8) "Team," a group which determines eligibility for the disabled child program under the provisions of this chapter and consists of a nurse and may include a representative of the department and may include a physician.

Source: 19 SDR 26, effective August 23, 1992; 40 SDR 122, effective January 8, 2014; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:09:02. Application required -- Time for determining eligibility -- Notice. Repealed.

Source: 19 SDR 26, effective August 23, 1992; repealed, 41 SDR 93, effective December 3, 2014.

67:46:09:03. Prerequisites for eligibility. Repealed.

Source: 19 SDR 26, effective August 23, 1992; repealed, 41 SDR 93, effective December 3, 2014.

67:46:09:04. Eligibility requirements. To be eligible, all of the following requirements must be met:

(1) The child is under the age of 19;

(2) A physician designated by the department has determined that the child is disabled according to 20 C.F.R. §§ 416.924 to 416.924b, inclusive, or determined disabled by the Social Security Administration within the last year. The Social Security Administration's disability determination is binding on eligibility or continued eligibility for services. If supplemental security income or social security disability is denied because the Social Security Administration determined that the child was not disabled, the child is not eligible for assistance;

(3) The child would be eligible for Medicaid if the child was in a medical institution;

(4) The child requires one of the levels of care listed in § 67:46:09:06;

(5) The estimated cost of monthly health care outside the medical institution does not exceed the medical institution's cost of care according to § 67:46:09:12; and

(6) The child meets the income and resource requirements contained in chapters 67:46:04 and 67:46:05.

Source: 19 SDR 26, effective August 23, 1992; 41 SDR 93, effective December 3, 2014; 44 SDR 94, effective December 4, 2017.

General Authority: SDCL 28-6-1(1)(4)(6).

Law Implemented: SDCL 28-6-1(1)(4)(6).

Cross-Reference: How we determine disability for children, 20 C.F.R. § 416.924 (July 15, 2011); Considerations in determining disability for children, 20 C.F.R. § 416.924a (September 11, 2000); Age as a factor of evaluation in the sequential evaluation process for children, 20 C.F.R. § 416.924b (October 19, 2007).

67:46:09:05. Physician's orders required. The child's attending physician must order the services for the child and must determine that home services are appropriate. Documentation verifying these findings must be available to the department on request.

Source: 19 SDR 26, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:09:06. Team to determine level of care. The team shall determine whether the child requesting assistance under this chapter needs one of the following levels of care:

(1) Acute care hospital;

(2) Specialized hospital;

(3) Nursing facility; or

(4) ICF-IID.

A child who is medically stable, even though disabled, is not considered in need of a level of care. A child is medically stable if the child's health care and medical needs do not require care in a medical institution.

Source: 19 SDR 26, effective August 23, 1992; 40 SDR 122, effective January 8, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:09:07. Level of care -- Acute care hospital. A child may qualify for an acute care hospital level of care if the child meets the following requirements:

(1) The child has a medical condition which requires nursing services 24 hours a day and the services can only be provided by a professional nurse, or the child requires the use of sophisticated equipment designed to alert caregivers to potential problems;

(2) The child is at risk of rapid deterioration in health status;

(3) The child requires the continued use of medical technology, complex medical equipment, or invasive techniques to sustain life; and

(4) Without the support of professional nursing services, the child would require hospitalization for an indefinite time because of the complexity or intensity of the child's long-term medical needs.

Source: 19 SDR 26, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:09:08. Level of care -- Specialized hospital. A child may qualify for a specialized hospital level of care if the child requires direct professional nursing services seven days a week and one of the following conditions exist:

(1) The child requires continued use of medical technology or invasive techniques to sustain life; or

(2) The child requires assistance in at least three of the five activities of daily living and the child requires regularly scheduled skilled therapeutic services, including physical therapy, occupational therapy, or speech/language therapy in any combination not less than once a week.

Source: 19 SDR 26, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:09:09. Level of care -- Nursing facility. A child may qualify for a nursing facility level of care when all of the following conditions are met:

(1) The child requires continuing professional nursing services which have been ordered by a physician and can only be provided by or under the supervision of a professional nurse as defined in chapter 20:48:04.01. These services include daily management, direct observation, monitoring, or performance of complex nursing procedures. Continuing care is repeated application of the procedures or services at least once each 24 hours, frequent monitoring, and documentation of the child's condition and response to the procedures or services;

(2) The child requires the assistance of another person for the performance of at least three of the five activities of daily living according to an age appropriate assessment. The ADL dependency requires the assistance and presence of another person during the entire activity; and

(3) The child requires skilled therapeutic services including physical therapy, occupational therapy, and speech/language therapy in any combination scheduled regularly, but not less than once a week unless limited by the child's medical condition or age.

Source: 19 SDR 26, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:09:10. Level of care -- ICF-IID. The team may assign an individual to an ICF-IID level of care when all of the following conditions are met:

(1) The child requires a continuous active treatment program;

(2) The child requires direct assistance from professionals for special rehabilitative or developmental intervention for conditions which significantly interfere with mental age-appropriate activities;

(3) The child requires the assistance of another person for the performance of at least three of the five activities of daily living according to an age appropriate assessment. The ADL dependency requires the assistance and presence of another person during the entire activity;

(4) The child requires continuing professional nursing services which have been ordered by a physician and can only be provided by or under the supervision of a professional nurse as defined in chapter 20:48:04.01. The services include daily management, direct observation, monitoring, or performance of complex nursing procedures. Continuing care is repeated application of the procedures or services at least once each 24 hours, frequent monitoring, and documentation of the child's condition and response to the procedures or services; and

(5) A clinical psychologist has determined that the child has an intellectual disability according to the provisions of § 67:46:09:11, or a physician or a psychologist has determined that the child is developmentally disabled according to § 67:54:04:05.

Source: 19 SDR 26, effective August 23, 1992; 40 SDR 122, effective January 8, 2014; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:09:11. Determination of intellectual disability. A clinical psychologist may determine that a child has an intellectually disability for the purposes of subdivision 67:46:09:10(5) if the child meets one of the following conditions:

(1) The child has achieved only those developmental milestones generally acquired by children no more than half the child's chronological age; or

(2) The child has an intelligence rating of 69 or below as determined by a standardized intelligence test such as the Wechsler Intelligence Scale for Children (WISC-R) or the Stanford-Binet.

Source: 19 SDR 26, effective August 23, 1992; 40 SDR 122, effective January 8, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:09:12. Cost not to exceed cost of medical institutional care. Based on the level of care determination, the actual itemized cost of all Medicaid covered services provided in the home may not exceed 100 percent of the Medicaid-allowable cost of care in a medical institution. Medicaid allowable cost is the amount payable when cost share, insurance, or Medicare deductible or coinsurance has been applied.

The costs of all services that would be included in a medical institution's reimbursement shall be used to determine the monthly home care cost. When determining the monthly home care cost, the cost of purchased medical equipment shall be prorated on an annual basis.

When the cost of care in the home exceeds the cost of institutional care, the department shall issue a notice of intent to discontinue or deny further service. The department may reconsider its decision to discontinue or deny further service if, within 30 days from the date of the notice, the parent provides documentation to the department that future costs will decline and be within 100 percent of the cost.

The Medicaid allowable cost of care for the various medical institutions are as follows:

(1) Acute hospital care for a child who meets the requirements of § 67:46:09:07, $22,600 a month;

(2) Specialized hospital care for a technology-dependent child who meets the requirements of subdivision 67:46:09:08(1), $13,800 a month;

(3) Specialized hospital care for a child who is not technology-dependent who meets the requirements of subdivision 67:46:09:08(2), $6,350 a month;

(4) Nursing facility care cost for a child who meets the requirements of § 67:46:09:09, $2,054 a month plus any add-on allowances for ventilator assistance; and

(5) Intermediate care facility for individuals with intellectual disabilities for a child who meets the requirements of § 67:46:09:10, $5,200 a month.

Source: 19 SDR 26, effective August 23, 1992; 20 SDR 144, effective March 10, 1994; 21 SDR 162, effective March 23, 1995; 40 SDR 122, effective January 8, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References: Add-on payment -- Ventilator, § 67:16:04:08.04; Documentation required for ventilator add-on payment, § 67:45:02:07.

67:46:09:13. Reviews for continued eligibility. The team shall review a child's case at least annually to determine if the child continues to meet the eligibility requirements of this chapter.

If the team determines that the child no longer meets the eligibility requirements, the case shall be closed and the child may no longer receive services under this chapter.

Failure to provide the department with required documentation concerning medical or financial information is cause for terminating eligibility.

Source: 19 SDR 26, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:09:14. Notice when case closed. If the department determines that the individual is no longer eligible for services under this chapter, it shall send a written notice to the child's parent, guardian, or other authorized representative at least 10 days before the case is closed.

Source: 19 SDR 26, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

CHAPTER 67:46:10

CHRONIC RENAL DISEASE PROGRAM

Section

67:46:10:01 Definitions.

67:46:10:02 Application to establish initial eligibility -- Refusal to comply.

67:46:10:03 Application to establish continuing eligibility.

67:46:10:04 Eligibility requirements.

67:46:10:05 Income considered.

67:46:10:06 Exclusions from resources.

67:46:10:07 Eligibility determination.

67:46:10:08 Program limitations.

67:46:10:09 Scope of services and benefits.

67:46:10:10 Basis of payment.

67:46:10:11 Payment limit.

67:46:10:12 Claim submission limit.

67:46:10:13 Date of eligibility.

67:46:10:14 Provider limitations.

67:46:10:15 Medical eligibility.

67:46:10:16 Acceptance for treatment.

67:46:10:17 Repealed.

67:46:10:18 Copayment.

67:46:10:01. Definitions. Terms used in this chapter mean:

(1) "Chronic renal failure," a phase of renal functional impairment which can no longer be favorably influenced by conservative management and which requires long-term, continuing dialysis or transplantation to maintain life and health;

(2) "Income," any money or in-kind payments before deductions as established in § 67:46:10:05;

(3) "Program," the South Dakota chronic renal disease program administered by the Department of Social Services;

(4) "Resident," a person residing in South Dakota with an intent to remain or absent from the state for medical purposes but with an intent to return;

(5) "Resource," real or personal property and income owned by the applicant or persons legally responsible for the applicant; and

(6) "Third party payer," any individual; firm; partnership; corporation; company; association; governmental agency, including Medicaid or veterans administration; local fund drive contributions; or any other entity responsible for or otherwise assuming an obligation to provide the payment of all or part of the cost of the medical care and treatment of a person suffering from chronic renal failure.

Source: 2 SDR 88, effective July 1, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 7 SDR 121, effective July 2, 1981; transferred from § 67:16:23:01, effective August 23, 1992; 21 SDR 86, effective December 29, 1994; 22 SDR 2, effective July 17, 1995; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6A-12.

Law Implemented: SDCL 28-6A-2.

67:46:10:02. Application to establish initial eligibility -- Refusal to comply. An individual suffering from chronic renal failure may complete and submit to the department a signed application for assistance under the program after the individual has been on dialysis for one month or has received a transplant within the last 12 months. The applicant's refusal to complete, date, and sign the application for assistance is a basis for rejecting the application.

Source: 2 SDR 88, effective July 1, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 7 SDR 121, effective July 2, 1981; transferred from § 67:16:23:02, effective August 23, 1992; 21 SDR 86, effective December 29, 1994; 30 SDR 193, effective June 13, 2004.

General Authority: SDCL 28-6A-12.

Law Implemented: SDCL 28-6A-2.

Cross-Reference: Eligibility requirements, § 67:46:10:04.

67:46:10:03. Application to establish continuing eligibility. A recipient of services under this chapter must submit a new, signed application upon request of the department or at least annually. If the recipient fails to complete, sign, date, and return the application within 10 days after the date the department mails the request, the recipient becomes ineligible beginning the first day of the following month.

Source: 7 SDR 121, effective July 2, 1981; transferred from § 67:16:23:02.01, effective August 23, 1992; 21 SDR 86, effective December 29, 1944.

General Authority: SDCL 28-6A-12.

Law Implemented: SDCL 28-6A-2.

67:46:10:04. Eligibility requirements. An individual is eligible for benefits under this chapter if all of the following requirements are met:

(1) The individual is a resident of South Dakota;

(2) The individual is either a citizen of the United States or an alien eligible under the provisions of § 67:46:01:10;

(3) The individual is unable to pay the total cost of lifesaving care and treatment for the renal failure;

(4) The individual has not deprived himself or herself, directly or indirectly, of any property or assets for the purpose of qualifying for assistance;

(5) The individual does not have a third-party payer. For purposes of this rule, Medicare and Indian Health Services are not considered third-party payers. In addition, the department is not considered a third-party payer if the individual is determined to be a qualified Medicare beneficiary, a special low-income Medicare beneficiary, or a Medicare beneficiary who has income of at least 120 percent but less than 135 percent of the federal poverty level, and the individual's Medicaid benefits are limited to payment of the individual's part A or B premiums, deductibles, or coinsurance;

(6) The individual is a proper candidate for care and treatment as determined by §§ 67:46:10:02, 67:46:10:15, and 67:46:10:16 and is willing to receive it;

(7) The individual's income, considered according to § 67:46:10:05, is less than 150 percent of the federal poverty level established in § 67:11:01:03; and

(8) Excluding items listed in § 67:46:10:06, the equity value of resources is less than $4,000 for a single individual and $6,000 for an individual with a spouse.

Source: 2 SDR 88, effective July 1, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 7 SDR 121, effective July 2, 1981; transferred from § 67:16:23:03, effective August 23, 1992; 21 SDR 86, effective December 29, 1994; 21 SDR 162, effective March 23, 1995; 22 SDR 2, effective July 17, 1995; 30 SDR 193, effective June 13, 2004.

General Authority: SDCL 28-6A-12.

Law Implemented: SDCL 28-6A-2.

Cross-Reference: Qualified Medicare beneficiaries, ch 67:46:11.

67:46:10:05. Income considered. When determining income eligibility, the department considers the household's earned and unearned income. For a salaried household member, earned income includes income in cash or in kind, before deductions, such as income taxes, social security taxes, insurance premiums, or savings bonds, earned through the receipt of wages, salary, commissions, or fees.

For a self-employed household member, earned income is the taxable income declared on the most recent tax return plus all depreciation allowances claimed as a deduction on the return.

All other income is considered unearned income and is considered when received.

Source: 2 SDR 88, effective July 1, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 7 SDR 121, effective July 2, 1981; transferred from § 67:16:23:04, effective August 23, 1992; 21 SDR 86, effective December 29, 1994; 22 SDR 2, effective July 17, 1995.

General Authority: SDCL 28-6A-12.

Law Implemented: SDCL 28-6A-2.

67:46:10:06. Exclusions from resources. All resources are considered available to the household unless excluded. The following resources are excluded:

(1) Personal residence and the contiguous land;

(2) Personal property, such as household furniture, life insurance policies, items essential for daily living, and automobiles;

(3) Income-producing property within the limits established in § 67:46:10:04; and

(4) Income-producing personal property, such as equipment, inventory of a small business, or tools needed to produce income during or following rehabilitation services.

Source: 2 SDR 88, effective July 1, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 7 SDR 121, effective July 2, 1981; 9 SDR 11, effective August 1, 1982; transferred from § 67:16:23:05, effective August 23, 1992; 21 SDR 86, effective December 29, 1994; 22 SDR 2, effective July 17, 1995.

General Authority: SDCL 28-6A-12.

Law Implemented: SDCL 28-6A-2.

67:46:10:07. Eligibility determination. Applications shall be reviewed by the department and approval or rejection shall be made to the applicant in writing within sixty days from the date of application. Approval for assistance, when granted, shall be for a period of one year or for a period of one year after the date of a successful transplant, whichever occurs first.

Source: 2 SDR 88, effective July 1, 1976; 6 SDR 66, effective January 10, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; transferred from § 67:16:23:06, effective August 23, 1992.

General Authority: SDCL 28-6A-12.

Law Implemented: SDCL 28-6A-2.

67:46:10:08. Program limitations. All payments for assistance and services under the chronic renal disease program shall be made within the budget limitation of the program.

Source: 2 SDR 88, effective July 1, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 58, effective November 29, 1981; transferred from § 67:16:23:07, effective August 23, 1992.

General Authority: SDCL 28-6A-2.

Law Implemented: SDCL 28-6A-2.

67:46:10:09. Scope of services and benefits. Services and benefits payable under the program include:

(1) Institutional dialysis;

(2) Home dialysis, including supplies, equipment, and special water softeners;

(3) Renal transplants;

(4) Hospitalization;

(5) Prescription drugs necessary for dialysis or transplants and not covered by other sources; and

(6) Travel expense reimbursements for the recipient, in accordance with chapter 67:16:49.

Source: 2 SDR 88, effective July 1, 1976; 6 SDR 66, effective January 10, 1980; 7 SDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 7 SDR 121, effective July 2, 1981; transferred from § 67:16:23:08, effective August 23, 1992; 21 SDR 86, effective December 29, 1994; 22 SDR 2, effective July 17, 1995; 30 SDR 193, effective June 13, 2004; 40 SDR 122, effective January 7, 2014; 43 SDR 31, effective September 12, 2016; 47 SDR 24, effective September 10, 2020.

General Authority: SDCL 28-6A-12 , 28-6-1.1.

Law Implemented: SDCL 28-6A-2.

67:46:10:10. Basis of payment. Payment for services under the program shall be made to the provider. All payments for services provided shall be based on the criteria used to establish rates for services and benefits in chapters 67:16:02, 67:16:03, 67:16:14, 67:46:10, and 67:16:25.

Source: 2 SDR 88, effective July 1, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 7 SDR 121, effective July 2, 1981; transferred from § 67:16:23:09, effective August 23, 1992.

General Authority: SDCL 28-6A-12.

Law Implemented: SDCL 28-6A-2.

67:46:10:11. Payment limit. Total payments made on behalf of an individual eligible under this chapter may not exceed $5,000 in a fiscal year.

Source: 2 SDR 88, effective July 1, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 7 SDR 121, effective July 2, 1981; transferred from § 67:16:23:10, effective August 23, 1992; 21 SDR 86, effective December 29, 1994.

General Authority: SDCL 28-6A-12.

Law Implemented: SDCL 28-6A-2.

67:46:10:12. Claim submission limit. All claims for services provided under this chapter must be submitted to the department according to the provisions of § 67:16:35:04.

Source: 9 SDR 28, effective September 5, 1982; transferred from § 67:16:23:10.01, effective August 23, 1992; 40 SDR 122, effective January 7, 2014.

General Authority: SDCL 28-6A-12.

Law Implemented: SDCL 28-6A-2.

67:46:10:13. Date of eligibility. Eligibility for benefits under this chapter shall start with the first day of the month in which the application is signed.

Source: 2 SDR 88, effective July 1, 1976; 6 SDR 66, effective January 10, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 7 SDR 121, effective July 2, 1981; transferred from § 67:16:23:11, effective August 23, 1992.

General Authority: SDCL 28-6A-12.

Law Implemented: SDCL 28-6A-2.

67:46:10:14. Provider limitations. Payments to medical providers under the program shall be limited to providers qualified for reimbursement from the Medicare program administered by the social security administration.

Source: 2 SDR 88, effective July 1, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; transferred from § 67:16:23:14, effective August 23, 1992.

General Authority: SDCL 28-6A-12.

Law Implemented: SDCL 28-6A-2.

67:46:10:15. Medical eligibility. Medical eligibility for benefits under this chapter is limited to persons who meet both of the following criteria:

(1) Presence of terminal irreversible renal failure of such severity that conservative management will not support life. The person requires peritoneal dialysis, hemodialysis, or renal transplant in order to sustain life; and

(2) A sufficient degree of understanding and motivation to assure that the person will participate in continuing dialysis. The person is willing to adhere to dietary and intake restrictions.

A report from the renal disease center or the applicant's or recipient's attending physician shall confirm that the requirements in this section are met before initial or continuing eligibility is determined.

Source: 2 SDR 88, effective July 1, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 7 SDR 121, effective July 2, 1981; transferred from § 67:16:23:15, effective August 23, 1992.

General Authority: SDCL 28-6A-12.

Law Implemented: SDCL 28-6A-2.

67:46:10:16. Acceptance for treatment. The person must be accepted for evaluation and treatment by a renal disease center which has been certified as such by the Medicare program administered by the social security administration.

Source: 2 SDR 88, effective July 1, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; transferred from § 67:16:23:16, effective August 23, 1992.

General Authority: SDCL 28-6A-12.

Law Implemented: SDCL 28-6A-2.

67:46:10:17. Base income disregard. Repealed.

Source: 7 SDR 121, effective July 2, 1981; 9 SDR 11, effective August 1, 1982; transferred from § 67:16:23:18, effective August 23, 1992; repealed, 21 SDR 86, effective December 29, 1994.

67:46:10:18. Copayment. A recipient of benefits under this chapter must make a copayment to the provider. The amount of the copayment is five percent of the amount allowed in § 67:46:10:10.

Source: 7 SDR 121, effective July 2, 1981; 9 SDR 11, effective August 1, 1982; transferred from § 67:16:23:19, effective August 23, 1992; 21 SDR 86, effective December 29, 1994.

General Authority: SDCL 28-6A-12.

Law Implemented: SDCL 28-6A-2.

CHAPTER 67:46:11

QUALIFIED MEDICARE BENEFICIARIES (QMB)

Section

67:46:11:01 Definitions.

67:46:11:02 Long-term care requirements applicable to QI, QMB and SLMB.

67:46:11:03 Income eligibility.

67:46:11:04 Repealed.

67:46:11:05 Deduction for court-ordered support or support enforced by OCSE.

67:46:11:06 Items not considered income when determining QI, QMB or SLMB eligibility.

67:46:11:07 Income from self-employment.

67:46:11:08 Deduction from earned income.

67:46:11:09 Income disregard.

67:46:11:10 Repealed.

67:46:11:11 Disposal of resources.

67:46:11:12 Date of eligibility.

67:46:11:13 Payment limits.

67:46:11:01. Definitions. Terms defined in § 67:16:01:01 have the same meaning when used in this chapter. In addition, terms used in this chapter mean:

(1) "BIA," the bureau of Indian affairs;

(2) "Coinsurance," that portion of the medical costs allowable but not payable by Medicare and for which the individual is responsible;

(3) "Deductible," the initial amount of allowable Medicare costs paid by the individual before Medicare begins paying;

(4) "Medicare," the federal health insurance program available through the social security administration for certain disabled individuals and for individuals 65 years of age or older;

(5) "OCSE," the office of child support enforcement within the department of social services;

(6) "Part A," insurance available through the Medicare program to help pay for medically necessary hospice or home health care or care in a hospital or skilled nursing facility;

(7) "Part B," insurance available through the Medicare program to help pay for medically necessary physician services, outpatient hospital services, and medical supplies;

(8) "Qualifying Individual" or "QI," a person who meets the requirements of this chapter and who is not otherwise eligible for Medicaid benefits and for whom the state pays the Part B Medicare premium;

(9) "Qualified Medicare beneficiary" or "QMB," a person who meets the requirements of this chapter and for whom the state pays the Medicare Part A and Part B premiums, deductibles, coinsurance, and copayments;

(10) "SCORE," the service corps of retired executives;

(11) "Special low-income Medicare beneficiary" or "SLMB," a person who meets the requirements of this chapter and for whom the state pays the Part B Medicare premium; and

(12) "VISTA," the volunteers in service to America.

Source: 15 SDR 171, effective May 15, 1989; transferred from § 67:16:30:01, effective August 23, 1992; 19 SDR 141, effective March 25, 1993; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:11:02. Long-term care requirements applicable to QI, QMB and SLMB. All provisions of chapters 67:46:02 to 67:46:05, inclusive, and 67:46:08 apply to QI, QMB and SLMB applicants and recipients unless otherwise specified in this chapter.

Source: 15 SDR 171, effective May 15, 1989; transferred from § 67:16:30:02, effective August 23, 1992; 19 SDR 141, effective March 25, 1993; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:11:03. Income eligibility. After the $20 disregard, income for a QMB individual may not exceed 100 percent of the federal poverty level established in § 67:11:01:03. If the individual's countable income is 100 percent of the federal poverty level or less and the individual is married and living with a spouse, the income of the spouse must be considered. If their combined countable income exceeds 100 percent of the federal poverty level for two individuals, the individual is ineligible.

After the $20 disregard, the countable income for a SLMB individual must exceed 100 percent of the federal poverty level and be less than 120 percent of the federal poverty level. If the individual's countable income is less than 120 percent of the federal poverty level and the individual is married and living with a spouse, the income of the spouse must be considered. If their combined countable income is equal to or greater than 120 percent of the federal poverty level for two individuals, the individual is ineligible.

After the $20 disregard, the countable income for a QI individual must be at least 120 percent of the federal poverty level and be less than 135 percent of the federal poverty level. If the individual's countable income is less than 135 percent of the federal poverty level and the individual is married and living with a spouse, the income of the spouse must be considered. If their combined countable income is equal to or greater than 135 percent of the federal poverty level for two individuals, the individual is ineligible.

Source: 15 SDR 171, effective May 15, 1989; 16 SDR 203, effective May 27, 1990; transferred from § 67:16:30:03, effective August 23, 1992; 19 SDR 141, effective March 25, 1993; 20 SDR 92, effective December 21, 1993; 21 SDR 162, effective March 23, 1995; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Income disregard, § 67:46:11:09.

67:46:11:04. Deduction from income for dependent child. Repealed.

Source: 15 SDR 171, effective May 15, 1989; 16 SDR 203, effective May 27, 1990; transferred from § 67:16:30:04, effective August 23, 1992; 19 SDR 141, effective March 25, 1993; 21 SDR 162, effective March 23, 1995; repealed, 41 SDR 93, effective December 3, 2014.

67:46:11:05. Deduction for court-ordered support or support enforced by OCSE. The department shall deduct from the ineligible spouse's income that portion of the income paid under court order or enforced by OCSE for the support of another person who is not in the household.

Source: 15 SDR 171, effective May 15, 1989; transferred from § 67:16:30:05, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:11:06. Items not considered income when determining QI, QMB or SLMB eligibility. In addition to those items contained in § 67:46:04:03, the following items are not considered income when determining QI, QMB or SLMB eligibility:

(1) Assistance based on need provided by a local government or nongovernmental agency, such as Catholic Charities, county assistance, or assistance from the Salvation Army;

(2) Replacement of resources in cash or in kind because of loss, damage, or theft of property;

(3) Home energy assistance;

(4) Home produce for personal use;

(5) Foster care payments made to a foster care provider;

(6) Grants or loans to undergraduate students for educational purposes which are insured by the United States secretary of education;

(7) Housing assistance from housing and urban development or farmer's home administration;

(8) Credit life or credit disability insurance payments on loans, installment purchases, and similar items in the event of death or disability;

(9) Money borrowed;

(10) Money received as repayment on the principal of a loan;

(11) Reimbursements for expenses of obtaining income such as per diem payments and mileage;

(12) United States department of agriculture food commodities, the value of coupon allotments from government agencies and, for an individual age 60 or over, the value of meals received at a center or the value of meals delivered to the individual's home;

(13) Any benefits received under the provisions of the Older Americans Act of 1965, except wages or salary;

(14) Payments to volunteers under the Domestic Volunteer Service Act of 1973, such as from SCORE, VISTA, or the foster grandparent program; and

(15) Indian judgment funds distributed on a per capita basis.

Source: 15 SDR 171, effective May 15, 1989; transferred from § 67:16:30:06, effective August 23, 1992; 19 SDR 141, effective March 25, 1993; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:11:07. Income from self-employment. The net income from self-employment is considered earned income. Net income is the taxable income declared on the individual's most recent income tax return. If a tax return was not filed or was filed and indicated no self-employment, the net income is as established on either a profit and loss statement or on some other business record for the tax year.

Source: 15 SDR 171, effective May 15, 1989; transferred from § 67:16:30:07, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:11:08. Deduction from earned income. A deduction of $65 plus one-half of the remainder is deducted from the total monthly earned income. If the individual is living with a spouse, the earned income deduction applies to the couple's total earned income.

Source: 15 SDR 171, effective May 15, 1989; transferred from § 67:16:30:08, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:11:09. Income disregard. The department shall disregard $20 a month from the applicant's or recipient's unearned income unless the income is from a source based on need, such as certain veterans' benefits, TANF, or BIA general assistance. If unearned income is less than $20, the difference shall be deducted from the applicant's or recipient's gross earned income before applying the earned income disregard provided in § 67:46:11:06. If the individual is living with the individual's spouse, the $20 deduction applies to the couple's combined income.

Source: 15 SDR 171, effective May 15, 1989; transferred from § 67:16:30:09, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:11:10. Resource limit. Repealed .

Source: 15 SDR 171, effective May 15, 1989; transferred from § 67:16:30:10, effective August 23, 1992; 19 SDR 141, effective March 25, 1993; 41 SDR 7, effective July 29, 2014; 41 SDR 93, effective December 3, 2014; 41 SDR 218, effective June 30, 2015; 44 SDR 94, effective December 4, 2017; 45 SDR 82, effective December 10, 2018.

67:46:11:11. Disposal of resources. The value of resources disposed of and no longer owned by the individual are not considered. The provisions of §§ 67:46:05:06 and 67:46:05:07 do not apply.

Source: 15 SDR 171, effective May 15, 1989; transferred from § 67:16:30:11, effective August 23, 1992.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:11:12. Date of eligibility. Benefits for individuals eligible for QMB begin with the month after the month in which the individual is determined eligible. Eligibility starting dates outlined in § 67:46:01:03 do not apply.

Benefits for individuals eligible for SLMB or QI begin with the first day of the month of application. Eligibility may begin as early as the first day of the third month prior to the month of application if all eligibility criteria are met.

Source: 15 SDR 171, effective May 15, 1989; transferred from § 67:16:30:12, effective August 23, 1992; 19 SDR 141, effective March 25, 1993; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:11:13. Payment limits. If an individual is eligible for QMB, payment is limited to Medicare premiums, deductibles, coinsurance, and copayment for Part A and Part B of Medicare.

If an individual is eligible for SLMB, payment is limited to the Part B Medicare premium.

If an individual is eligible for QI, payment is limited to the Part B Medicare premium. The department may discontinue services provided under the provisions of this chapter if the department exhausts its financial resources for providing the services.

Source: 15 SDR 171, effective May 15, 1989; transferred from § 67:16:30:13, effective August 23, 1992; 19 SDR 141, effective March 25, 1993; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

CHAPTER 67:46:12

MODIFIED ADJUSTED GROSS INCOME MEDICAID

ELIGIBILITY STANDARDS

Section

67:46:12:01 Definitions.

67:46:12:02 Medicaid eligibility -- Parent/caretaker relative.

67:46:12:03 Repealed.

67:46:12:04 Repealed.

67:46:12:05 Repealed.

67:46:12:06 Repealed.

67:46:12:07 Repealed.

67:46:12:08 Income limit -- Parent/caretaker relative.

67:46:12:09 Repealed.

67:46:12:10 Medicaid eligibility -- Pregnant woman.

67:46:12:11 Income limit -- Pregnant woman.

67:46:12:12 Medicaid eligibility -- Children.

67:46:12:13 Income limit -- Children.

67:46:12:14 Medicaid eligibility -- Other reasonable classifications of children.

67:46:12:15 Income limit -- Other reasonable classifications of children.

67:46:12:16 Medicaid eligibility -- Adult group.

67:46:12:17 Income limit -- Adult group.

67:46:12:01. Definitions. Terms used in this chapter mean:

(1) "Caretaker relative," a relative of a dependent child by blood, adoption, or marriage with whom the child is living, who assumes primary responsibility for the child's care (as may, but is not required to, be indicated by claiming the child as a tax dependent for Federal income tax purposes), and who is one of the following:

(a) The child's father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew, or niece;

(b) The spouse of such parent or relative, even after the marriage is terminated by death or divorce.

(2) "Dependent child," a child who has not attained 18 years of age or has not attained 19 years of age and is a full-time student in a secondary school, and is expected to complete the program before reaching the age of 19;

(3) "Parent," a natural or biological, adoptive or step parent;

(4) "Pregnant woman," a woman during pregnancy and the post-partum period, which begins on the date the pregnancy ends, extends 60 days, and ends on the last day of the month in which the 60-day period ends; and

(5) "Family Size/Household," an individual's family size has the same meaning as determined under the provisions of 42 C.F.R. § 435.603 (July 15, 2013).

Source: 24 SDR 24, effective August 31, 1997; 41 SDR 7, effective July 29, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References: Definitions and use of terms, 42 C.F.R. § 435.4 (March 23, 2012); Application of modified adjusted gross income (MAGI), 42 C.F.R. § 435.603 (July 15, 2013).

67:46:12:02. Medicaid eligibility -- Parent/caretaker relative. If a dependent child is living with a parent/caretaker relative, the parent/caretaker relative may be eligible for Medicaid if the following criteria is met:

(1) They meet the general eligibility requirements of chapter 67:46:01;

(2) They meet the requirements contained in this chapter.

Source: 24 SDR 24, effective August 31, 1997; 41 SDR 7, effective July 29, 2014; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:12:03. Determination of principal wage earner. Repealed.

Source: 24 SDR 24, effective August 31, 1997; repealed, 31 SDR 107, effective February 1, 2005.

67:46:12:04. Determining deprivation because of parents' unemployment. Repealed.

Source: 24 SDR 24, effective August 31, 1997; repealed, 31 SDR 107, effective February 1, 2005.

67:46:12:05. Circumstances under which parent not considered unemployed. Repealed.

Source: 24 SDR 24, effective August 31, 1997; repealed, 31 SDR 107, effective February 1, 2005.

67:46:12:06. Determining family size. Repealed.

Source: 24 SDR 24, effective August 31, 1997; repealed, 41 SDR 7, effective July 29, 2014.

67:46:12:07. Consideration of income and resources. Repealed.

Source: 24 SDR 24, effective August 31, 1997; repealed, 41 SDR 7, effective July 29, 2014.

67:46:12:08. Income limit -- Parent/caretaker relative. To be eligible for assistance under this chapter a parent/caretaker relative's income, based on family size determined under the provisions of 42 C.F.R. § 435.603 (July 15, 2013), may not exceed the following amounts plus five percent of the current year's federal poverty guidelines for that family size:

FAMILY SIZE MONTHLY GROSS INCOME LIMIT 1 $ 563 2 703 3 796 4 885 5 977 6 1,070 7 1,160 8 1,249 9 1,340 10 1,431

Source: 24 SDR 24, effective August 31, 1997; 41 SDR 7, effective July 29, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-References: Definitions and use of terms, 42 C.F.R. § 435.4 (March 23, 2012); Application of modified adjusted gross income (MAGI), 42 C.F.R. § 435.603 (July 15, 2013).

67:46:12:09. Resource limit. Repealed.

Source: 24 SDR 24, effective August 31, 1997; 31 SDR 107, effective February 1, 2005; repealed, 41 SDR 7, effective July 29, 2014.

67:46:12:10. Medicaid eligibility -- Pregnant woman. A pregnant woman is eligible for Medicaid if the following criteria is met:

(1) She meets the general eligibility requirements of chapter 67:46:01;

(2) She meets the requirements contained in this chapter.

Source: 41 SDR 7, effective July 29, 2014; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:12:11 . Income limit -- Pregnant woman. To be eligible for assistance under this chapter, a pregnant woman may not have income which exceeds one hundred and thirty-eight percent of the federal poverty guidelines based on family size, for the current year.

Source: 41 SDR 7, effective July 29, 2014 ; 49 SDR 125, effective July 3, 2023 .

General Authority: SDCL 28-6-1 .

Law Implemented: SDCL 28-6-1 (4)(6) .

Cross-Reference: Application of modified adjusted gross income (MAGI), 42 C.F.R. § 435.603 , in effect on November 30, 2016 .

67:46:12:12. Medicaid eligibility -- Children. A child is eligible for Medicaid if the following criteria is met:

(1) With the exception of § 67:46:01:14, the child meets the general eligibility requirements of chapter 67:46:01;

(2) The child meets the requirements contained in this chapter.

Source: 41 SDR 7, effective July 29, 2014; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Application of modified adjusted gross income (MAGI), 42 C.F.R. § 435.603 (July 15, 2013).

67:46:12:13. Income limit -- Children. To be eligible for assistance under this chapter a child's family income, based on family size, may not exceed 182% of the current year's federal poverty guidelines for that family size.

Source: 41 SDR 7, effective July 29, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Application of modified adjusted gross income (MAGI), 42 C.F.R. § 435.603 (July 15, 2013).

67:46:12:14. Medicaid eligibility -- Other reasonable classifications of children. A child under age 21 is eligible for Medicaid assistance if the child;

(1) Is in an adoption that is subsidized in full or part by a public agency;

(2) Resides in a nursing or intermediate care facility;

(3) Is under the custody of the department;

(4) Is in foster care and the department is assuming full or partial financial responsibility;

(5) Is under the jurisdiction of the Department of Corrections and is not an inmate of a public institution under the provisions of 42 CFR 435.1008;

(6) Is adjudicated under the guardianship of the South Dakota Human Services Center and is receiving inpatient psychiatric treatment for drug or alcohol dependency; or

(7) Is adjudicated under the guardianship of the South Dakota Human Services Center and is receiving inpatient psychiatric treatment.

The child must also meet the requirements in Chapter 67:46:01 and have income within limits specified in § 67:46:12:15.

Source: 41 SDR 7, effective July 29, 2014; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Application of modified adjusted gross income (MAGI), 42 C.F.R. § 435.603 (July 15, 2013).

67:46:12:15. Income limit -- Other reasonable classifications of children.

FAMILY SIZE MONTHLY GROSS INCOME LIMIT 1 $ 382 2 484 3 561 4 636 5 713 6 790 7 865 8 940 9 1016 10 1092

Source: 41 SDR 7, effective July 29, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Application of modified adjusted gross income (MAGI), 42 C.F.R. § 435.603 (July 15, 2013).

67:46:12:16 . Medicaid eligibility -- Adult group . An individual may be eligible for Medicaid if the individual:

(1) Is over age eighteen and under age sixty-five;

(2) Is not pregnant;

(3) Is not entitled to or enrolled to receive Medicare benefits;

(4) Is not otherwise eligible for and enrolled to receive mandatory coverage under the state Medicaid plan; and

(5) Has a household income that is at or below one hundred and thirty-three percent of the federal poverty level for the applicable family size.

Source: 49 SDR 125, effective July 3, 2023 .

General Authority: SDCL 28-6-1 .

Law Implemented: SDCL 28-6-1 (4)(6) .

67:46:12:17 . Income limit -- Adult group . To be eligible for assistance under this chapter, an individual eligible for Medicaid under § 67:46:12:16 , based on family size determined under the provisions of 42 C.F.R. § 435.603, may not exceed one hundred and thirty-three percent of the federal poverty level, plus five percent of the federal poverty guidelines based on family size for the current year.

Source: 49 SDR 125, effective July 3, 2023 .

General Authority: SDCL 28-6-1 .

Law Implemented: SDCL 28-6-1 (4)(6) .

Cross-References:

Application of modified adjusted gross income (MAGI), 42 C.F.R. § 435.603, in effect on November 30, 2016.

Definitions and use of terms, 42 C.F.R. §435.4, in effect on November 3, 2022.

Federal poverty level, § 67:11:01:03 .

CHAPTER 67:46:13

TRANSITIONAL MEDICAL BENEFITS

Section

67:46:13:01 Definitions.

67:46:13:02 Initial eligibility for transitional medical benefits.

67:46:13:03 TMB limited to 12 consecutive months.

67:46:13:04 Continuing eligibility for TMB.

67:46:13:05 to 67:46:13:10 Repealed.

67:46:13:11 Ineligibility for fraud.

67:46:13:01. Definitions. Terms used in this chapter mean:

(1) "Parent/caretaker relative," a Medicaid coverage group consisting of low income families eligible for Medicaid under the provisions of chapter 67:46:12; and

(2) "TMB" or "transitional medical benefits," continued medical coverage immediately following ineligibility for parent/caretaker relative Medicaid.

Source: 24 SDR 24, effective August 31, 1997; 36 SDR 215, effective July 1, 2010; 41 SDR 7, effective July 29, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Medicaid eligibility -- Parent/caretaker relative, § 67:46:12:02.

67:46:13:02. Initial eligibility for transitional medical benefits. An individual that becomes ineligible for parent/caretaker relative Medicaid and any dependent child in the parent/caretaker relative's household is eligible for TMB if the following conditions exist:

(1) The individual was receiving Medicaid under the provisions of chapter 67:46:12 in the immediately preceding month but became prospectively ineligible because the parent/caretaker relative had increased income from employment; and

(2) The individual received Medicaid under the provisions of chapter 67:46:12 in any 3 or more months during the 6-month period immediately before the month in which the parent/caretaker relative became ineligible.

Source: 24 SDR 24, effective August 31, 1997; 36 SDR 215, effective July 1, 2010; 41 SDR 7, effective July 29, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:13:03. TMB limited to 12 consecutive months. Transitional medical benefits may begin the first month the parent/caretaker relative is ineligible for Medicaid under the provisions of chapter 67:46:12 and is limited to the 12 consecutive months immediately following ineligibility for Medicaid.

Source: 24 SDR 24, effective August 31, 1997; 36 SDR 215, effective July 1, 2010; 41 SDR 7, effective July 29, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

67:46:13:04. Continuing eligibility for TMB. Eligibility for TMB continues for 12 consecutive months if the family continues to reside in the state and a dependent child who was a member of the family at the time the family was determined first eligible for TMB continues to live with the family.

Source: 24 SDR 24, effective August 31, 1997; 36 SDR 215, effective July 1, 2010; 41 SDR 7, effective July 29, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Cross-Reference: Definitions, § 67:46:12:01.

67:46:13:05. TMB eligibility during second six months. Repealed.

Source: 24 SDR 24, effective August 31, 1997; repealed, 36 SDR 215, effective July 1, 2010.

67:46:13:06. Report forms required -- Ineligibility for delayed or incomplete reports. Repealed.

Source: 24 SDR 24, effective August 31, 1997; repealed, 36 SDR 215, effective July 1, 2010.

67:46:13:07. Good cause for filing late or incomplete report form. Repealed.

Source: 24 SDR 24, effective August 31, 1997; repealed, 36 SDR 215, effective July 1, 2010.

67:46:13:08. Determination of family's average monthly gross-earnings. -- TMB. Repealed.

Source: 24 SDR 24, effective August 31, 1997; repealed, 36 SDR 215, effective July 1, 2010.

67:46:13:09. Determining family's child care costs for TMB. Repealed.

Source: 24 SDR 24, effective August 31, 1997; repealed, 36 SDR 215, effective July 1, 2010.

67:46:13:10. Determining family size -- TMB. Repealed.

Source: 24 SDR 24, effective August 31, 1997; repealed, 36 SDR 215, effective July 1, 2010.

67:46:13:11. Ineligibility for fraud. If a court of law finds that a member of a Medicaid household committed fraud resulting in mistaken eligibility for Medicaid for one of the six months preceding the current period of Medicaid ineligibility, all members of the Medicaid household in which the fraud was committed are ineligible for continued medical coverage under this chapter.

Source: 24 SDR 24, effective August 31, 1997; 41 SDR 7, effective July 29, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

CHAPTER 67 : 46 : 15

REFUGEE MEDICAL PROGRAM

67:46:15:01 Qualifications for refugee assistance.

67:46:15:02 Documentation required.

67:46:15:03 Eligibility factors relating to refugees with children.

67:46:15:04 Earned income exemption not applied.

67:46:15:05 Eligibility factors relating to adult refugees.

67:46:15:06 Children of refugees who are U.S. citizens.

67:46:15:07 Exempted income and resources.

67:46:15:08 Medical services.

67:46:15:09 Fair hearings.

67 : 46 : 15 : 01 . Qualifications for refugee assistance. Pursuant to the Refugee Act of 1980, Pub. L. No. 96-212 (March 17, 1980) , assistance may be provided to individuals who have been granted asylum or have been admitted as refugees. United States citizens and their dependents who have been repatriated are excluded under the refugee assistance program for the first 90 days they are in this country.

Source: 43 SDR 31 , effective September 12, 2016; 49 SDR 46, effective November 21, 2022 .

General Authority: SDCL 28 - 1 - 50 , 28-6-1 .

Law Implemented: SDCL 28-6-1 .

Cross-References:

Repatriate program, ch apter 67:12:13 .

Refugee Act of 1980, Pub. L. No. 96-212 (March 17, 1980) , 94 Stat. 105.

Immigration and Nationality Act of 1959, 66 Stat. 166.

Project grants and contracts for services for refugees, 8 U.S.C. § 1522(c)(1)(A)(iii).

General eligibility requirements, 45 C.F.R. § 400.100(a)(2) (March 22, 2000).

Federal funding for medical assistance, 45 C.F.R. § 400.204 (June 28, 1995).

67 : 46 : 15 : 02 . Documentation required. A refugee applying for assistance under this chapter must meet immigration status and identification requirements pursuant to 45 C . F . R . § 400. 1 00(a)(2) ( March 22, 2000 ).

Source: 43 SDR 31 , effective September 12, 2016; 49 SDR 46, effective November 21, 2022 .

General Authority: SDCL 28 - 1 - 50 , 28-6-1 .

Law Implemented: SDCL 28-6-1 .

Cross-Reference:

General eligibility requirements, 45 C. F . R . § 400.1 00 (a)(2) (March 22, 2000) .

Requirements for documentation of refugee status, 45 C.F.R. § 400.43 (March 22, 2000).

67 : 46 : 15 : 03 . Eligibility factors relating to refugees with children. Assistance may be provided to any child or any other member of the household who would be eligible for assistance under chapters 67:12:01 to 67:12:06 , inclusive, but is not required to meet the requirements of §§ 67:12:01 :14, 67:12:01 :19, and 67:12:01 :29 to 67:12:01 :39, inclusive.

Source: 43 SDR 31 , effective September 12, 2016; 49 SDR 46, effective November 21, 2022 .

General Authority: SDCL 28 - 1 - 50 , 28-6-1 .

Law Implemented: SDCL 28-6-1 .

Cross-References:

Citizenship and alienage, § 67:12:01:14 .

Age requirements for AFDC , § 67:12:01:19 .

Deprivation of parental support or care, §§ 67:12:01:29 to 67:12:01:39 , inclusive.

Eligibility of second parent in AFDC grant, § 67:12:01:55 .

Assistance for refugee children , 8 U.S.C. § 1522(d) .

Financial eligibility standards , 45 C.F.R. § 400.101 (March 22, 2000).

67 : 46 : 15 : 04 . Earned income exemption not applied. When determining eligibility and computing the amount of assistance for a refugee under this chapter, the earned income exemption may not be applied.

Source: 43 SDR 31 , effective September 12, 2016; 49 SDR 46, effective November 21, 2022.

General Authority: SDCL 28 - 1 - 50 , 28-6-1 .

Law Implemented: SDCL 28-6-1 .

Cross-References:

Earned income exemption for AFDC, § 67:12:05:14 .

Consideration of income and resources, 45 C.F.R. § 400.102 (March 22, 2000).

67 : 46 : 15 : 05 . Eligibility factors relating to adult refugees. Assistance may be provided to adult refugees who have no children and would be eligible under the income and resource limitations according to chapters 67:12:04 to 67:12:06 , inclusive.

Source: 43 SDR 31 , effective September 12, 2016; 49 SDSR 46, effective November 21, 2022 .

General Authority: SDCL 28 - 1 - 50 , 28-6-1 .

Law Implemented: SDCL 28-6-1 .

Cross-References:

Refugee Act of 1980, Pub. L. No. 96-212 (March 17, 1980) , 94 Stat. 114.

Limitations on real property, ch apter 67:12:04 .

Limitations on personal property, ch apter 67:12:05 .

Budgeting, ch apter 67:12:06 .

Financial eligibility standards, 45 C.F.R. § 400.101 (March 22, 2000).

67 : 46 : 15 : 06 . Children of refugees who are U.S. citizens. If the child of a refugee is a United States citizen because the child was born in this country , that child is considered a part of the refugee family for purposes of eligibility for medical care.

Source: 43 SDR 31 , effective September 12, 2016; 49 SDR 46, effective November 21, 2022 .

General Authority: SDCL 28 - 1 - 50 , 28-6-1 .

Law Implemented: SDCL 28-6-1 .

Cross-Reference:

Refugee Act of 1980, Pub. L. No. 96-212 (March 17, 1980) , 94 Stat. 103.

Claims involving family units which include both refufees and nonrefugees, 45 C.F.R. § 400.208 (March 22, 2000).

67 : 46 : 15 : 07 . Exempted income and resources. Resources or income of the sponsor and resources not currently available to the refugee must be exempted in the determination of initial or continuing eligibility for the program.

Source: 43 SDR 31 , effective September 12, 2016; 49 SDR 46, effective November 21, 2022 .

General Authority: SDCL 28 - 1 - 50 , 28-6-1 .

Law Implemented: SDCL 28-6-1 .

Cross-References:

Refugee Act of 1980, Pub. L. No. 96-212 (March 17, 1980) , 94 Stat. 102.

Limitations on real property, ch apter 67:12:04 .

Limitations on personal property, ch apter 67:12:05 .

Budgeting, ch apter 67:12:06 .

Consideration of income and resources, 45 C.F.R. § 400.102 (March 22, 2000).

Continued coverage of receipients who receive increased earnings from employment, 45 C.F.R. § 400.104 (March 22, 2000).

Example: A resource not currently available to the refugee would include a resource in the refugee's homeland.

67 : 46 : 15 : 08 . Medical services. If a refugee is eligible for services under this chapter, medical assistance may be provided for a period of twelve months from the date the refugee entered the United States.

Source: 43 SDR 31 , effective September 12, 2016; 49 SDR 46, effective November 21, 2022 .

General Authority: SDCL 28 - 1 - 50 , 28-6-1 .

Law Implemented: SDCL 28-6-1 .

Cross-References:

Medical assistance for refugees, § 67:46:01:09 .

Refugee Act of 1980, Pub. L. No. 96-212 (March 17, 1980) , 94 Stat. 115.

Covered medical services, art icle 67:16 .

Methodology to be used to determine time-eligibility of refugees, 45 C.F.R. § 400.211 (March 22, 2000).

Extending Refugee Cash Assistance and Refugee Medical Assistance from 8 months to 12 months, 87 Fed. Reg. 17312 (March 28, 2022).

67 : 46 : 15 : 09 . Fair hearings. An applicant or a recipient is entitled to a fair hearing in accordance with chapter 67:17:02 .

Source: 43 SDR 31 , effective September 12, 2016; 49 SDR 46, effective November 21, 2022 .

General Authority: SDCL 28 - 1 - 50 , 28-6-1 .

Law Implemented: SDCL 28-6-1 .

Cross Reference:

Hearings, 45 C.F.R. § 400.23 (March 22, 2000).