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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67:46:04:05 Repealed.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67:46:04:07 Repealed.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67:46:04:09 Repealed.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67:46:04:11 Repealed.
67:46:04:12 Repealed.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67:46:04:17 Repealed.
67:46:04:18 Repealed .
67:46:04:19 Repealed .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