Rule 67:46:01:01 Definitions.

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67:46:01:04 Repealed.

67:46:01:05 Repealed.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: