Rule 67:46:07:01 Definitions.

CHAPTER 67:46:07

COMMUNITY SPOUSES

Section

67:46:07:01 Definitions.

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

67:46:07:03 Repealed.

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

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

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

67:46:07:07 Retroactive eligibility.

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

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

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

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

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

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

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

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

67:46:07:16 Repealed.

67:46:07:17 Fair hearings.

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

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

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

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

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

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

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

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

(3) The institutionalized spouse has a community spouse.

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

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

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:02, effective August 23, 1992; 30 SDR 193, effective June 13, 2004; 41 SDR 93, effective December 3, 2014; 43 SDR 31, effective September 12, 2016.

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

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

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

67:46:07:03. Determination of spousal share. Repealed .

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:03, effective August 23, 1992; 30 SDR 166, effective July 1, 2004; 31 SDR 107, effective February 1, 2005; 33 SDR 124, effective January 2, 2007; 34 SDR 271, effective April 17, 2008; 35 SDR 234, effective April 1, 2009; 41 SDR 7, effective July 29, 2014; 41 SDR 218, effective June 30, 2014; 41 SDR 218, effective June 30, 2015; 44 SDR 94, effective December 4, 2017; 45 SDR 82, effective December 10, 2018.

67:46:07:04. Application of existing resource rules to spousal share of resources. When determining the spousal share of resources, the department shall apply the rules established in chapter 67:46:05 to both the institutionalized spouse and the community spouse.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:04, effective August 23, 1992.

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

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

67:46:07:05. Long-term care eligibility. Individuals wishing to apply for long-term care assistance must apply as provided in chapter 67:46:02.

Eligibility other than financial shall be determined according to chapters 67:46:01 and 67:46:03.

Financial eligibility shall be determined according to chapters 67:46:04 and 67:46:05.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:05, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

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

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

67:46:07:06. Initial month of eligibility. When determining initial eligibility for long-term care assistance for an institutionalized spouse in a nursing or intermediate care facility or who is receiving HCBS or HCBWS, the community spouse's share must be deducted from the couple's total countable resources.

If the institutionalized spouse was a former recipient during the same continuous period of institutionalization, provisions of § 67:46:07:08 apply.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:06, effective August 23, 1992; 30 SDR 193, effective June 13, 2004.

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

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

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

67:46:07:07. Retroactive eligibility. When determining retroactive eligibility at the time of the initial eligibility determination, the department shall deduct the community spouse's share from the couple's combined countable resources for each of the three retroactive months.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:07, effective August 23, 1992.

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

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

67:46:07:08. Consideration of resources at time of redetermination of eligibility or reapplication for assistance. At the time of redetermination of eligibility or reapplication for long-term care assistance during a continuous period of institutionalization, resources held by the institutionalized spouse shall be considered for eligibility according to chapter 67:46:05.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:08, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

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

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

Cross-Reference: Annual redetermination of eligibility, § 67:46:02:08.

67:46:07:09. Determination of amount of long-term care assistance for institutionalized spouse. Sections 67:46:07:10 to 67:46:07:13, inclusive, and chapter 67:46:06, except for §§ 67:46:06:02, 67:46:06:03, and 67:46:06:07, shall be used to determine the amount of long-term care assistance the institutionalized spouse is eligible to receive from the department.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:09, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

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

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

67:46:07:10. Order of deductions from institutionalized spouse's income. Deductions from the income of the institutionalized spouse shall be allowed in the following order:

(1) The personal needs allowance specified in § 67:46:06:05;

(2) The spousal maintenance and excess shelter allowance specified in § 67:46:07:12;

(3) The maintenance allowance for dependents living with the community spouse as specified in § 67:46:07:13;

(4) The deduction for premiums paid on health insurance policies according to § 67:46:07:04; and

(5) Unpaid medical expenses incurred during a period which is no more than three months prior to the month of the most recent application for long term care services. The expenses must have been for necessary medical or remedial care services recognized under state law and prescribed by a physician that are not covered by Medicaid or any third party.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:10, effective August 23, 1992; 41 SDR 93, effective December 3, 2014.

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

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

67:46:07:11. Deduction for maintenance of community spouse. The institutionalized spouse is allowed a deduction from the institutionalized spouse's income for the maintenance needs of the community spouse. The deduction is that amount remaining after subtracting the community spouse's monthly income from the maintenance allowance and any excess shelter allowance.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:11, effective August 23, 1992.

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

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

    67:46:07:12 .  Computation of community spouse's maintenance allowance and excess shelter allowance. The community spouse's monthly minimum maintenance allowance is one hundred fifty percent of the federal poverty income level , established in accordance with § 67:11:01:03 , for two persons , divided by twelve .

    The excess shelter allowance is determined by subtracting thirty percent of the minimum maintenance allowance from the community spouse's shelter costs. Shelter costs include rent or mortgage costs, trailer parking space fees, taxes and insurance on the premises, and condominium or cooperative maintenance charges for the couple's principal residence. Shelter costs also include the applicable supplemental nutrition assistance program utility allowance pursuant to § 67:13:01:02 , 67:13:01:05 , or 67:13:01:06 .

    Rent, mortgage, taxes, insurance, and condominium and cooperative maintenance charges paid less frequently than monthly are prorated.

    The combined spousal allowances may not exceed four thousand sixty-six dollars and fifty cents, unless a greater allowance is provided for under a court order of support , or if , through the fair hearing process , it is determined that a greater need exists because of circumstances resulting in financial duress.

    These allowances are not permissible if the institutionalized spouse does not make the income available to the community spouse.

    Source: 16 SDR 203, effective May 27, 1990 and July 1, 1990; transferred from § 67:16:32:12, effective August 23, 1992; 19 SDR 141, effective March 25, 1993; 20 SDR 92, effective December 21, 1993; 20 SDR 170, effective April 21, 1994; 21 SDR 162, effective March 23, 1995; 31 SDR 107, effective February 1, 2005; 33 SDR 124, effective January 2, 2007; 34 SDR 271, effective April 17, 2007; 35 SDR 234, effective April 1, 2009; 41 SDR 7, effective July 29, 2014; 41 SDR 93, effective December 3, 2014; 41 SDR 218, effective June 30, 2015; 44 SDR 94, effective December 4, 2017; 47 SDR 24, effective September 10, 2020 ; 47 SDR 138, effective July 1, 2021; 48 SDR 131, effective July 4, 2022; 49 SDR 125, effective July 3, 2023; 51 SDR 3, effective June 30, 2024; 51 SDR 140, effective June 30, 2025; 52 SDR 125, effective July 1, 2026 .

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

    Law Implemented: SDCL 28-6-1 (4)(6) , 28-6-1 7, 28-6-18 (6) .

67:46:07:13. Deduction for maintenance of dependents living with community spouse. The institutionalized spouse is allowed a deduction from the institutionalized spouse's income for the maintenance needs of dependents living with the community spouse. The allowable deduction is an amount equal to the standard community spouse's maintenance allowance determined according to § 67:46:07:12, minus the dependents' monthly income, the result divided by one-third.

This deduction is permissible even if the institutionalized spouse does not make the allowance available.

If a greater income allowance is specified under court order or through the fair hearing process, the greater amount shall be used in place of the limits in this section.

For purposes of this rule, the term "dependent" only includes minor or dependent children, dependent parents, or dependent siblings of the institutionalized or community spouse, including half-blood or adopted, who are living with and may be claimed by either spouse for income tax purposes.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:13, effective August 23, 1992.

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

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

67:46:07:14. Determination of income of community spouse and dependents. When determining income for the community spouse or dependent, the department shall apply §§ 67:46:04:01 to 67:46:04:09, inclusive.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:14, effective August 23, 1992.

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

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

67:46:07:15. Loss of community spouse status. When a change in circumstances results in an individual no longer having a community spouse or an institutionalized spouse, the community spouse status is considered lost at the beginning of the first full calendar month following the change in circumstance.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:15, effective August 23, 1992.

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

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

67:46:07:16. Medical eligibility for community spouse or dependent. Repealed.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:16, effective August 23, 1992; repealed, 41 SDR 93, effective December 3, 2014.

67:46:07:17. Fair hearings. If either spouse is dissatisfied with the determinations made under this chapter, a fair hearing may be requested only after the conditions contained in SDCL 28-6-17 have been met. Fair hearings shall be conducted according to chapter 67:17:02.

Source: 16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:17, effective August 23, 1992.

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

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