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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67:46:05:09.01 Repealed.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67:46:05:09.03 Repealed.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67:46:05:13 Repealed.
67:46:05:14 Repealed.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67:46:05:25 Repealed.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).