CHAPTER 67:46:01
\r\n\r\n\r\nGENERAL PROVISIONS
\r\n\r\n\r\n\r\nSection
\r\n\r\n67:46:01:01 Definitions.
\r\n\r\n67:46:01:02 Eligibility requirements.
\r\n\r\n67:46:01:03 Eligibility starting date.
\r\n\r\n67:46:01:04 Repealed.
\r\n\r\n67:46:01:05 Repealed.
\r\n\r\n67:46:01:06 Confidential information.
\r\n\r\n67:46:01:06.01 Release of confidential information.
\r\n\r\n67:46:01:07 Identification card.
\r\n\r\n67:46:01:08 Fair hearings.
\r\n\r\n67:46:01:09 Medical assistance for refugees.
\r\n\r\n67:46:01:10 Medical assistance for qualified alien.
\r\n\r\n67:46:01:11 Application for assistance.
\r\n\r\n67:46:01:12 Social security numbers.
\r\n\r\n67:46:01:13 Individual to supply required information.
\r\n\r\n67:46:01:14 Availability of income and resources.
\r\n\r\n67:46:01:15 Recovery of overpayments.
\r\n\r\n67:46:01:16 Declaration and documentation of\r\ncitizenship required.
\r\n\r\n67:46:01:17 State residency determinations -- General\r\nprovisions.
\r\n\r\n67:46:01:18 Residency -- Placement by states in an\r\nout-of-state long-term care facility.
\r\n\r\n67:46:01:19 No specified period of residence required.
\r\n\r\n67:46:01:20 Incapability of indicating intent.
\r\n\r\n67:46:01:21 Residency\r\ndeterminations -- Individuals under age 21 residing in long-term care\r\nfacilities.
\r\n\r\n67:46:01:22 Residency\r\ndeterminations -- Individuals under age 21 not residing in a long-term care\r\nfacility.
\r\n\r\n67:46:01:23 Residency\r\ndeterminations -- Individuals aged 21 and over residing in long-term care\r\nfacilities -- Capable of indicating intent.
\r\n\r\n67:46:01:24 Residency\r\ndeterminations -- Individuals aged 21 and over residing in long-term care\r\nfacilities -- Incapable of indicating intent before age 21.
\r\n\r\n67:46:01:25 Residency\r\ndeterminations -- Individuals aged 21 and over residing in long-term care\r\nfacilities -- Incapable of indicating intent after age 21.
\r\n\r\n67:46:01:26 Residency\r\ndeterminations -- Individuals aged 21 and over not residing in a long-term care\r\nfacility.
\r\n\r\n67:46:01:27 Disputed residency cases.
\r\n\r\n67:46:01:28 Residence determination when individual\r\nleaves the state.
\r\n\r\n\r\n\r\n67:46:01:01. Definitions. Terms\r\nused in this article mean:
\r\n\r\n\r\n\r\n
(1) "AFDC," the aid to\r\nfamilies with dependent children program as it existed on July 16, 1996, under\r\nthe provisions of article 67:12;
\r\n\r\n\r\n\r\n
(2) "Applicant," an\r\nindividual who has filed an application for participation in the medical\r\nassistance program;
\r\n\r\n\r\n\r\n
(3) "Department," the\r\nDepartment of Social Services;
\r\n\r\n\r\n\r\n
(4) "Medicaid," the program\r\nauthorized by Title XIX of the Social Security Act, 42 U.S.C. § 1396d, as\r\namended to July 1, 2014, which covers the allowable medical expenses of\r\neligible individuals;
\r\n\r\n\r\n\r\n
(5) "Medical assistance,"\r\n"medical services," or "medical assistance program," the\r\nMedicaid program authorized by Title XIX of the Social Security Act, 42 U.S.C.\r\n§ 1396d, as amended to July 1, 2014, and SDCL 28-6, which provides medical assistance to eligible individuals but does not necessarily include long-term care; assistance provided to children who qualify for the nonmedicaid children's health insurance program covered under the provisions of chapter 67:46:14;
\r\n\r\n\r\n\r\n
(6) "Qualified alien," a\r\nlegal alien who arrived in the United States after August 21, 1996, who meets\r\neither the requirements of 8 U.S.C. § 1641(b) or 8 U.S.C.\r\n§ 1613(b)(2), as amended to July 1, 2014;
\r\n\r\n\r\n\r\n
(7) "Qualified developmental\r\ndisabilities professional," any person with at least one year of\r\nexperience working directly with individuals with intellectual disabilities or\r\nother developmental disabilities and is either a doctor of medicine or\r\nosteopathy, a registered nurse, or a person who holds at least a bachelor's\r\ndegree in a professional category;
\r\n\r\n\r\n\r\n
(8) "Recipient," a person who\r\nis determined by the department to be eligible for services under this article;\r\nand
\r\n\r\n\r\n\r\n
(9) "SSI," supplemental\r\nsecurity income.
\r\n\r\n\r\n\r\n
Source: Portions of this rule were copied\r\nfrom § 67:16:01:01, effective August 23, 1992; SDR 141, effective March\r\n25, 1993; 20 SDR 92, effective December 21, 1993; 23 SDR 152, effective March\r\n14, 1997; 24 SDR 24, effective August 31, 1997; 26 SDR 168, effective July 1, 2000;\r\n40 SDR 122, effective January 7, 2014; 41 SDR 93, effective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1, 42 U.S.C. § 1396d.
\r\n\r\nLaw Implemented: SDCL 28-6-1, 42 U.S.C. § 1396d.
\r\n\r\n\r\n\r\n
Cross-Reference: Definition of\r\n"qualified developmental disabilities professional," SDCL 27B-1-17(14), 42 C.F.R. § 483.430.
\r\n\r\n\r\n\r\n
67:46:01:02. Eligibility requirements. The following individuals are eligible for medical assistance:
(1) A parent or other caretaker relative of a dependent child eligible for Medicaid under the provisions of chapter 67:46:12;
(2) A person who is a recipient of a money payment under the supplemental security income program;
(3) A person under age twenty-one who would be a recipient of a money payment under the supplemental security income program if not subject to subparagraphs (A) and (B) of 42 U.S.C. § 1382(c)(7);
(4) A person who is in a hospital or intermediate care facility and would be eligible for a money payment under the supplemental security income program upon leaving the facility;
(5) A person under age twenty-one who is in the custody of the department and who meets the income requirements of § 67:46:12:15;
(6) A person under age twenty-one who meets the income limits of § 67:46:12:15, is in foster care, and whose financial responsibility has been assumed in full or in part by the department;
(7) A person who is eligible under the provisions of chapters 67:46:02 to 67:46:06, inclusive;
(8) A person who is eligible for transitional medical benefits under the provisions of chapter 67:46:13;
(9) A child in a subsidized adoption;
(10) A person who is currently receiving social security, who was entitled to and received social security and supplemental security income concurrently after April 1977, who was terminated from supplemental security income, and who currently would be eligible for supplemental security income if the social security cost of living allowances back to the time of supplemental security income ineligibility are disregarded;
(11) A pregnant woman who meets the income requirements under the provisions of chapter 67:46:12;
(12) A woman who applied for Medicaid while pregnant and who was eligible for and received Medicaid on the date the pregnancy ended. Eligibility continues to the end of the month three hundred and sixty-five days after the pregnancy ends;
(13) A child under age nineteen whose family income meets the income requirements under the provisions of chapter 67:46:12;
(14) A child under age nineteen who is eligible for the non-Medicaid children's health insurance program covered under the provisions of chapter 67:46:14;
(15) A person determined to be a qualified Medicare beneficiary under the provisions of chapter 67:46:11, with benefits limited to the part A and B premium, deductible, co-payments, and coinsurance charges;
(16) A person determined to be a special low-income Medicare beneficiary under the provisions of chapter 67:46:11 whose income is at least one hundred percent, but less than one hundred and twenty percent of the federal poverty level. Benefits are limited to payment of part B Medicare premiums;
(17) A person determined to be a qualified Medicare beneficiary under the provisions of chapter 67:46:11 whose income is at least one hundred and twenty percent, but less than one hundred and thirty-five percent of the federal poverty level, and who is not otherwise eligible for Medicaid. Benefits are limited to payment of part B Medicare premiums. The department may discontinue services provided under the provisions of this chapter if the department exhausts its financial resources for providing the services;
(18) A person who is eligible for and is receiving services under the home and community-based services waiver program in chapter 67:44:03 or the home and community-based services program in chapter 67:54:04, 67:54:06 or 67:54:09;
(19) A disabled widow or a disabled widower who is at least age fifty but less than age sixty-five, who was terminated from supplemental security income due to receipt of social security benefits under Title II of the Social Security Act, as amended to January 1, 2016, who is not on Medicare part A, and who would continue to be eligible for supplemental security income if the Title II benefits are disregarded;
(20) A disabled adult who became disabled or blind before age twenty-two and was terminated from supplemental security income due to entitlement to social security benefits as an adult disabled child, but who would continue to be eligible for supplemental security income if the social security benefits are disregarded;
(21) A child born to a woman eligible for and receiving Medicaid on the date of the child's birth. Eligibility continues for up to one year as long as the child remains a resident of the state;
(22) A child under age twenty-one who is under the jurisdiction of the South Dakota Department of Corrections, is not an inmate of a public institution, does not reside with a parent, and meets the income requirements as established under the provisions of chapter 67:46:12;
(23) A child under age twenty-six who, on the child's eighteenth birthday, was in foster care under the responsibility of the state;
(24) A woman over age twenty-nine and under age sixty-five who was screened for breast and cervical cancer by the Department of Health's All Women Count Program and who is in need of treatment for breast or cervical cancer or a precancerous condition of the breast or cervix, is not covered under creditable coverage, and is not otherwise eligible for medical services;
(25) Coverage from conception to birth when the mother is not eligible for Medicaid under the requirements of § 67:46:01:16 and meets the income limits established in § 67:46:12:11;
(26) A working individual with a disability who has a net income below two hundred and fifty percent of the federal poverty level and who, except for earned income, meets all criteria for receiving benefits under the supplemental security income program; and
(27) A person over age eighteen and under age sixty-five who meets the income requirements in chapter 67:46:12.
For purposes of this rule, a qualified alien who arrived in the United States after August 21, 1996, and who meets the eligibility requirements contained in this section must also meet the requirements of § 67:46:01:10.
Source: SL 1975, ch 16, § 1; 2 SDR 88, effective July 1, 1976; 4 SDR 35, effective December 22, 1977; 7 SDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 12 SDR 4, effective July 21, 1985; 12 SDR 112, effective January 16, 1986; 13 SDR 193, effective June 22, 1987; 14 SDR 140, effective May 1, 1988; 15 SDR 2, effective July 17, 1988; 15 SDR 171, effective May 15, 1989; 15 SDR 191, effective June 11, 1989; 17 SDR 8, effective July 23, 1990; 17 SDR 53, effective October 16, 1990; 17 SDR 187, effective June 3, 1991; 17 SDR 187, effective June 3, 1991; 17 SDR 200, effective July 1, 1991; transferred from § 67:16:01:02, effective August 23, 1992; 19 SDR 141, effective March 25, 1993; 20 SDR 92, effective December 21, 1993; 21 SDR 67, effective October 13, 1994; 21 SDR 162, effective March 23, 1995; 22 SDR 32, effective September 11, 1995; 23 SDR 152, effective March 14, 1997; 24 SDR 24, effective August 31, 1997; 24 SDR 104, effective January 29, 1998; 25 SDR 13, effective August 9, 1998; 26 SDR 168, effective July 1, 2000; 29 SDR 84, effective November 22, 2002; 30 SDR 193, effective June 13, 2004; 36 SDR 215, effective July 1, 2010; 41 SDR 7, effective July 29, 2014; 41 SDR 93, effective December 3, 2014; 43 SDR 31, effective September 12, 2016; 49 SDR 125, effective July 3, 2023.
General Authority: SDCL 28-6-1.
Law Implemented: SDCL 28-6-1(6).
Cross-References:
Federal poverty level, § 67:11:01:03.
Subsidized adoption regulations, chapter 67:14:14.
Declaration and documentation of citizenship required, § 67:46:01:16.
Income limit -- Pregnant woman, § 67:46:12:11.
Deemed newborn children, 42 C.F.R. § 435.117.
Institutionalized individuals, 42 C.F.R. § 435.1009.
Definitions relating to institutional status, 42 C.F.R. § 435.1010.
Group care centers for minors, chapter 67:42:07.
Residential treatment centers, chapter 67:42:08.
State option of Medicaid coverage for adolescents leaving foster care, 113 Stat. 1829.
John H. Chafee foster care independence program, 113 Stat. 1824.
State option of Medicaid coverage for adolescents leaving foster care, 42 U.S.C. § 1396a(a)(10)(A)(ii)(XVII).
State option of Medicaid coverage for certain breast or cervical cancer patients, 42 U.S.C. § 1396a(a)(10)(A)(ii)(XVIII).
Prohibition of preexisting condition exclusions or other discrimination based on health status, 42 U.S.C. § 300gg-3(c).
State option of working individuals with disabilities, 42 U.S.C. § 1396a(a)(10)(A)(ii)(XIII) (July 1, 2016).
67:46:01:03. Eligibility starting\r\ndate. Unless otherwise specified, eligibility for medical assistance begins\r\nwith the first day of the month the department receives the application if the\r\napplicant meets all the requirements for assistance. Unless otherwise\r\nspecified, medical assistance may also begin as early as the first day of the\r\nthird month immediately before the month the department received the\r\napplication if the individual received Medicaid services during this period and\r\nwould have been eligible to receive medical assistance if the individual had\r\napplied at the time the services were received.
\r\n\r\n\r\n\r\n
Source: Copied from §
General Authority: SDCL 28-6-1(6).
\r\n\r\nLaw Implemented: SDCL 28-6-1(6).
\r\n\r\n\r\n\r\n
Cross-Reference: Long-term care residency\r\nrequirement and beginning of eligibility, § 67:46:03:03.
\r\n\r\n\r\n\r\n
67:46:01:04. Choosing a provider.\r\nRepealed.
\r\n\r\n\r\n\r\n
Source: Copied from § 67:16:01:04,\r\neffective August 23, 1992; repealed, 41 SDR 93, effective December 3, 2014.
\r\n\r\n\r\n\r\n
67:46:01:05. Payment of Medicare\r\nbuy-in premiums. Repealed.
\r\n\r\n\r\n\r\n
Source: Copied from § 67:16:01:06,\r\neffective August 23, 1992; 19 SDR 141, effective March 25, 1993; repealed, 41\r\nSDR 93, effective December 3, 2014.
\r\n\r\n\r\n\r\n
67:46:01:06. Confidential\r\ninformation. Information in the department's possession that concerns an\r\napplicant or recipient is considered confidential and its use is limited to\r\npurposes directly related to the administration of the medical services\r\nprogram. The following uses or purposes are considered to be directly related\r\nto the administration of the medical services program:
\r\n\r\n\r\n\r\n
(1) Establishing\r\neligibility for the medical services program;
\r\n\r\n(2) Determining the\r\namount of medical assistance;
\r\n\r\n(3) Providing\r\nservices to or on behalf of an eligible individual; or
\r\n\r\n(4) Conducting or\r\nassisting in an investigation, prosecution, or civil or criminal proceeding\r\nrelating to the administration of the medical assistance program.
\r\n\r\n\r\n\r\n
Source: Copied from\r\n§ 67:16:01:12, effective August 23, 1992; 35 SDR 166, effective December 24, 2008.
\r\n\r\nGeneral Authority: SDCL 28-1-32.
\r\n\r\nLaw Implemented: SDCL 28-1-29, 28-1-32.
\r\n\r\n\r\n\r\n
67:46:01:07. Identification card. The department shall\r\nissue an identification card to an individual eligible for medical services\r\nunder this article. The individual must show this identification card to the\r\nmedical provider when requesting service.
\r\n\r\n\r\nSource:\r\nCopied from § 67:16:01:13, effective August 23, 1992; 24 SDR 11, effective\r\nAugust 4, 1997.
\r\n\r\nGeneral\r\nAuthority: SDCL 28-6-1.
\r\n\r\nLaw\r\nImplemented: SDCL 28-6-1.
\r\n\r\n\r\n67:46:01:08. Fair hearings. Providers, applicants, and\r\nrecipients shall be entitled to fair hearings in accordance with the provisions\r\nof SDCL 28-6-6 and chapter 67:17:02.
\r\n\r\n\r\nSource:\r\nCopied from § 67:16:01:17, effective August 23, 1992; 21 SDR 162, effective\r\nMarch 23, 1995.
\r\n\r\nGeneral\r\nAuthority: SDCL 28-6-6.
\r\n\r\nLaw\r\nImplemented: SDCL 28-6-6.
\r\n\r\n\r\n67:46:01:09. Medical\r\nassistance for refugees. Medical assistance must be provided to refugees who are\r\neligible for assistance under chapter 67:46:15.
\r\n\r\n\r\n\r\n
Source: 2 SDR 10,\r\neffective August 12, 1975; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR\r\n11, effective August 13, 1981; transferred from § 67:16:01:20, effective\r\nAugust 23, 1992;\r\n47 SDR 24, effective September 10, 2020.
\r\n\r\nGeneral Authority: SDCL 28-6-1(1)(4)(6).
\r\n\r\nLaw Implemented: SDCL 28-6-1(1)(4)(6).
\r\n\r\n\r\n\r\n
Cross-Reference: Refugee\r\nAct of 1980, Pub. L. No. 96-212, 94 Stat. 115.
\r\n\r\n\r\n\r\n
67:46:01:10. Medical assistance for qualified alien. A\r\nqualified alien is ineligible for assistance under this article for five years\r\nunless the alien meets the requirements contained in Pub. L. No. 104-193,\r\n§ 402(b)(2) (110 Stat. 2264) (August 22, 1996).\r\nThe five-year period begins with the date the alien entered the United States.
\r\n\r\n\r\nSource:\r\n23 SDR 152, effective March 14, 1997; 24 SDR 24, effective August 31, 1997.
\r\n\r\nGeneral\r\nAuthority: SDCL 28-6-1.
\r\n\r\nLaw\r\nImplemented: SDCL 28-6-1.
\r\n\r\n\r\nCross-Reference: Limited eligibility for designated federal\r\nprograms, Pub. L. No. 104-93, § 402(b) (110 Stat. 2264) (August 22,\r\n1996).
\r\n\r\n\r\n67:46:01:11. Application for\r\nassistance. Except for those individuals covered under subdivisions\r\n67:46:01:02(2), (3), (8), (12), (22), or (24), an individual desiring medical\r\nassistance under this article or someone acting on the individual's behalf, must\r\nsubmit a completed and signed application for assistance to the department.
\r\n\r\n\r\n\r\n
Source: 24 SDR 24, effective August 31,\r\n1997; 41 SDR 93, effective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1.
\r\n\r\nLaw Implemented: SDCL 28-6-1.
\r\n\r\n\r\n\r\n
Cross-Reference: Written application, 42\r\nC.F.R. 435.907 (September 23, 1994).
\r\n\r\n\r\n\r\n
67:46:01:12. Social security numbers. As a condition of\r\neligibility, each applicant for assistance must furnish the department with the\r\napplicant's social security number.
\r\n\r\n\r\nSource:\r\n24 SDR 24, effective August 31, 1997.
\r\n\r\nGeneral\r\nAuthority: SDCL 28-6-1.
\r\n\r\nLaw\r\nImplemented: SDCL 28-6-1.
\r\n\r\n\r\n67:46:01:13. Individual to supply\r\nrequired information. As a condition of eligibility, an individual applying\r\nfor or receiving assistance under this article must provide the department with\r\nthe necessary verification to establish initial or continuing eligibility or\r\ninformation necessary for quality control efforts. The individual must also\r\ncooperate with the department in establishing the paternity of an applicant or\r\nrecipient child and in obtaining medical support and medical payments unless\r\nthe individual establishes good cause for not cooperating. Failure or refusal\r\nto cooperate or supply the necessary information results in the denial of an\r\napplication or the termination of current benefits.
\r\n\r\n\r\n\r\n
A pregnant woman is exempt from this section with\r\nregard to establishing paternity for a child conceived out of wedlock who has\r\nyet to be born.
\r\n\r\n\r\n\r\n
Good cause is established following the provisions\r\nof §§ 67:10:01:26 through 67:10:01:34, inclusive.
\r\n\r\n\r\n\r\n
Source: 24 SDR 24, effective August 31,\r\n1997; 34 SDR 322, effective July 1, 2008; 41 SDR 93, effective December 3,\r\n2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1.
\r\n\r\nLaw Implemented: SDCL 28-6-1.
\r\n\r\n\r\n\r\n
Cross-Reference: Acceptance of assistance\r\nas assignment and subrogation of support rights and insurance proceeds --\r\nLiability of insurer or attorney, SDCL 28-6-7.1.
\r\n\r\n\r\n\r\n
67:46:01:14. Availability of income and resources. An\r\nindividual applying for or receiving medical assistance must take advantage of\r\nall income and resources to which the individual is entitled, including items\r\nsuch as social security, SSI, unemployment compensation, income and resources\r\navailable under the terms of a trust, veterans' benefits, insurance policies,\r\nand contractual agreements. Failure or refusal by the individual to take the\r\nnecessary action to take advantage of the income and resources makes the\r\nindividual ineligible for medical assistance.
\r\n\r\n\r\nSource:\r\n30 SDR 193, effective June 13, 2004.
\r\n\r\nGeneral\r\nAuthority: SDCL 28-6-1.
\r\n\r\nLaw\r\nImplemented: SDCL 28-6-1.
\r\n\r\n\r\n67:46:01:15. Recovery of overpayments. If medical\r\nassistance is paid on behalf of an individual and the department subsequently\r\nfinds that the individual was ineligible for the medical assistance benefits\r\npaid, the department considers that the medical benefit was paid in error. A\r\nbenefit paid in error constitutes a debt to and is subject to recovery from the\r\nindividual by the department according to the limits of chapter 67:48:01.
\r\n\r\n\r\nSource:\r\n30 SDR 193, effective June 13, 2004.
\r\n\r\nGeneral\r\nAuthority: SDCL 28-6-1(4).
\r\n\r\nLaw\r\nImplemented: SDCL 28-6-1(4).
\r\n\r\n\r\nCross-Reference:\r\nRecoveries and investigations, art 67:48.
\r\n\r\n\r\n67:46:01:16. Declaration and\r\ndocumentation of citizenship required. An applicant or recipient must\r\ndeclare his or her citizenship or alien status. An applicant or recipient who\r\ndeclares that he or she is a citizen or national of the United States must present\r\nto the department documentary evidence of citizenship or nationality as\r\nspecified in 42 U.S.C. § 1396b(x), as amended to July 1, 2014.
\r\n\r\n\r\n\r\n
Source: 33 SDR 44, effective August 31,\r\n2006; 41 SDR 93, effective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1.
\r\n\r\nLaw Implemented: SDCL 28-6-1.
\r\n\r\n\r\n\r\n
67:46:01:17. State residency\r\ndeterminations -- General provisions. An applicant or recipient must be a\r\nresident of the state of South Dakota to be eligible for long-term care\r\nassistance. An individual's state of residence shall be determined according to\r\nthe following:
\r\n\r\n\r\n\r\n
(1) If the individual has been placed\r\nby a state agency into an out-of-state institution, the state arranging or\r\nactually making the placement is the individual's state of residence;
\r\n\r\n\r\n\r\n
(2) If the individual is competent and\r\nleaves the facility into which the individual had been placed by a state, that\r\nindividual's state of residence is the state in which the individual is\r\nphysically located;
\r\n\r\n\r\n\r\n
(3) If a placement is initiated by a\r\nstate because that state lacks a sufficient number of appropriate facilities to\r\nprovide services to its residents, the state making the placement is the\r\nindividual's state of residence;
\r\n\r\n\r\n\r\n
(4) If the individual is receiving a\r\nstate supplementary payment, the state making the supplementary payment is the\r\nindividual's state of residence;
\r\n\r\n\r\n\r\n
(5) If the individual is receiving\r\nfederal payments for foster care and adoption assistance under Title IV-E of\r\nthe Social Security Act, the state making the payment is the individual's state\r\nof residence.
\r\n\r\n\r\n\r\n
Source: 2 SDR 74, effective May 13, 1976; 7\r\nSDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982;\r\n10 SDR 39, effective November 1, 1983; 11 SDR 86, effective December 30, 1984;\r\ntransferred from § 67:16:18:04, effective August 23, 1992; transferred\r\nfrom § 67:46:03:04, 41 SDR 93, effective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1.
\r\n\r\nLaw Implemented: SDCL 28-6-1.
\r\n\r\n\r\n\r\n
Cross-Reference: Incapability of indicating\r\nintent, § 67:46:01:20.
\r\n\r\n\r\n\r\n
67:46:01:18. Residency -- Placement\r\nby states in an out-of-state long-term care facility. If a state arranges\r\nfor an individual to be placed in a long-term care facility located in another\r\nstate, the state making the placement is the individual's state of residence,\r\nregardless of the individual's intent or ability to indicate intent.
\r\n\r\n\r\n\r\n
If an individual capable of indicating intent\r\nleaves the facility into which the individual has been placed by a state, the\r\nindividual's state of residence is the state where the individual is physically\r\nlocated.
\r\n\r\n\r\n\r\n
Any action beyond providing information to the\r\nindividual and the individual's family constitutes arranging or making a state\r\nplacement. Providing basic information about facilities available in another\r\nstate or assisting an individual to locate an institution in another state,\r\nprovided the individual is capable of indicating intent and independently\r\ndecides to move, is not considered state placement.
\r\n\r\n\r\n\r\n
Source: 8 SDR 170, effective June 21, 1982;\r\n11 SDR 86, effective December 30, 1984; transferred from § 67:16:18:04.01,\r\neffective August 23, 1992; transferred from § 67:46:03:05, 41 SDR 93,\r\neffective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1.
\r\n\r\nLaw Implemented: SDCL 28-6-1.
\r\n\r\n\r\n\r\n
Cross-Reference: Placement by a State in an\r\nout-of-State institution, 42 C.F.R. § 435.403(e) (July 12, 2006).
\r\n\r\n\r\n\r\n
67:46:01:19. No specified period of\r\nresidence required. The department shall not deny long-term care assistance\r\nto an eligible individual in a long-term care facility who has not resided in\r\nSouth Dakota for a specified period or who did not establish residence in South\r\nDakota before entering the long-term care facility.
\r\n\r\n\r\n\r\n
Source: 8 SDR 170, effective June 21, 1982;\r\ntransferred from § 67:16:18:04.02, effective August 23, 1992; transferred\r\nfrom § 67:46:03:06, 41 SDR 93, effective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1.
\r\n\r\nLaw Implemented: SDCL 28-6-1.
\r\n\r\n\r\n\r\n
67:46:01:20. Incapability of\r\nindicating intent. The department shall consider an individual incapable of\r\nindicating intent if the individual meets one of the following:
\r\n\r\n\r\n\r\n
(1) The individual has been judged\r\nlegally incompetent by a court;
\r\n\r\n\r\n\r\n
(2) A physician, psychologist, or a\r\nqualified developmental disability professional has found the individual to be\r\nincapable of indicating intent and has based this finding on medical evidence;\r\nor
\r\n\r\n\r\n\r\n
(3) A psychologist has determined that\r\nthe individual has an IQ of 49 or less or a mental age of 7 or less and has\r\nbased this determination on tests appropriate for the individual being tested.
\r\n\r\n\r\n\r\n
Source: 10 SDR 39, effective November 1,\r\n1983; transferred from § 67:16:18:04.03, effective August 23, 1992; 40 SDR\r\n122, effective January 8, 2014; transferred from § 67:46:03:07, 41 SDR 93,\r\neffective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1.
\r\n\r\nLaw Implemented: SDCL 28-6-1.
\r\n\r\n\r\n\r\n
Cross-References: State residence --\r\nIndividual considered incapable of indicating intent, 42 C.F.R.\r\n§ 435.403(c) (July 12, 2006).
\r\n\r\n\r\n\r\n
67:46:01:21. Residency\r\ndeterminations -- Individuals under age 21 residing in long-term care\r\nfacilities. The state of residence for an individual under age 21 who is\r\nresiding in a long-term care facility shall be determined according to the\r\nfollowing:
\r\n\r\n\r\n\r\n
(1) If the individual is emancipated\r\nfrom the individual's parents or if the individual is married and capable of\r\nindicating intent, the state where the individual is living with the intention\r\nto remain permanently or for an indefinite period is the individual's state of\r\nresidence;
\r\n\r\n\r\n\r\n
(2) If the individual is neither\r\nmarried nor emancipated, the state of residence may be determined by one of the\r\nfollowing:
\r\n\r\n\r\n\r\n
(a) The state of residence is that\r\nof the parent's state of residence at the time of placement;
\r\n\r\n\r\n\r\n
(b) The state of residence is that\r\nof the parent who filed the application provided the individual is\r\ninstitutionalized in the parent's state of residence;
\r\n\r\n\r\n\r\n
(c) If parental rights have been\r\nterminated and a legal guardian has been appointed, the state of residence is\r\nthat of the guardian's state of residence at the time of placement; or
\r\n\r\n\r\n\r\n
(d) If parental rights have been\r\nterminated and a legal guardian has been appointed, the state of residence is\r\nthat of the guardian who files the application provided the individual is\r\ninstitutionalized in the guardian's state of residence.
\r\n\r\n\r\n\r\n
(3) If the individual has been\r\nabandoned by the individual's parents and does not have a legal guardian, the\r\nindividual's state of residence is the state of residence of the person filing\r\nthe application.
\r\n\r\n\r\n\r\n
Source: 11 SDR 86, effective December 30,\r\n1984; transferred from § 67:16:18:04.04, effective August 23, 1992;\r\ntransferred from § 67:46:03:08, 41 SDR 93, effective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1.
\r\n\r\nLaw Implemented: SDCL 28-6-1.
\r\n\r\n\r\n\r\n
Cross-Reference: State residence --\r\nIndividuals under age 21, 42 C.F.R. § 435.403(h) (July 12, 2006).
\r\n\r\n\r\n\r\n
67:46:01:22. Residency\r\ndeterminations -- Individuals under age 21 not residing in a long-term care\r\nfacility. The state of residence for individuals under age 21 who are not\r\nresiding in a long-term care facility is one of the following:
\r\n\r\n\r\n\r\n
(1) For an individual who is\r\nemancipated from the individual's parents or married and who is capable of\r\nindicating intent, the state of residence is the state where the individual is\r\nliving and
\r\n\r\n\r\n\r\n
(a) Intends to reside, including\r\nwithout a fixed address; or
\r\n\r\n(b) Has entered the state with a\r\njob commitment or seeking employment, whether or not currently employed;
\r\n\r\n\r\n\r\n
(2) For any other individual, the state\r\nof residence is:
\r\n\r\n\r\n\r\n
(a) The state where the individual\r\nresides, including without a fixed address; or
\r\n\r\n\r\n\r\n
(b) The state of residency of the\r\nparent or caretaker, with whom the individual reside, and where the parent or\r\ncaretaker is living; and
\r\n\r\n\r\n\r\n
(i) Intends to reside,\r\nincluding without a fixed address; or
\r\n\r\n(ii) Has entered the State\r\nwith a job commitment or seeking employment, whether or not currently employed.
\r\n\r\n\r\n\r\n
Source: 11 SDR 86, effective December 30,\r\n1984; transferred from § 67:16:18:04.05, effective August 23, 1992; 41 SDR\r\n7, effective July 29, 2014; transferred from § 67:46:03:09, 41 SDR 93,\r\neffective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1.
\r\n\r\nLaw Implemented: SDCL 28-6-1.
\r\n\r\n\r\n\r\n
Cross-Reference: Assistance applications\r\nand eligibility, chapter 67:12:01; State residence, 42 C.F.R. 435.403(h) (July\r\n12, 2006).
\r\n\r\n\r\n\r\n
67:46:01:23. Residency\r\ndeterminations -- Individuals aged 21 and over residing in long-term care\r\nfacilities -- Capable of indicating intent. For a long-term care applicant\r\nor recipient aged 21 or over capable of indicating intent, the state of\r\nresidence is the state where the individual is living with the intention to\r\nremain there permanently or for an indefinite period.
\r\n\r\n\r\n\r\n
Source: 11 SDR 86, effective December 30,\r\n1984; transferred from § 67:16:18:04.06,\r\neffective August 23, 1992; transferred from § 67:46:03:10, 41 SDR 93,\r\neffective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1.
\r\n\r\nLaw Implemented: SDCL 28-6-1.
\r\n\r\n\r\n\r\n
Cross-Reference: State residence --\r\nIndividuals age 21 and over, 42 C.F.R. § 435.403(i) (July 12, 2006).
\r\n\r\n\r\n\r\n
67:46:01:24. Residency\r\ndeterminations -- Individuals aged 21 and over residing in long-term care\r\nfacilities -- Incapable of indicating intent before age 21. For a long-term\r\ncare individual aged 21 or over who became incapable of indicating intent\r\nbefore age 21, the state of residence is one of the following:
\r\n\r\n\r\n\r\n
(1) If the individual is neither\r\nmarried nor emancipated, the state of residence may be determined by one of the\r\nfollowing:
\r\n\r\n\r\n\r\n
(a) The state of residence is that\r\nof the parent's state of residence at the time of placement;
\r\n\r\n\r\n\r\n
(b) The state of residence is that\r\nof the parent who files the application provided the individual is\r\ninstitutionalized in the parent's state of residence;
\r\n\r\n\r\n\r\n
(c) If parental rights have been\r\nterminated and a legal guardian has been appointed, the state of residence is\r\nthat of the guardian's state of residence at the time of placement; or
\r\n\r\n\r\n\r\n
(d) If parental rights have been\r\nterminated and a legal guardian has been appointed, the state of residence is\r\nthat of the guardian who files the application provided the individual is\r\ninstitutionalized in the guardian's state of residence;
\r\n\r\n\r\n\r\n
(2) That of the person filing the\r\napplication if the individual has been abandoned by the individual's parent,\r\ndoes not have a legal guardian, and is residing in long-term care in that\r\nstate.
\r\n\r\n\r\n\r\n
Source: 11 SDR 86, effective December 30,\r\n1984; transferred from § 67:16:18:04.07, effective August 23, 1992;\r\ntransferred from § 67:46:03:11, 41 SDR 93, effective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1.
\r\n\r\nLaw Implemented: SDCL 28-6-1.
\r\n\r\n\r\n\r\n
Cross-Reference: State residence --\r\nIndividuals age 21 and over, 42 C.F.R. § 435.403(i) (July 12, 2006).
\r\n\r\n\r\n\r\n
67:46:01:25. Residency\r\ndeterminations -- Individuals aged 21 and over residing in long-term care\r\nfacilities -- Incapable of indicating intent after age 21. For a long-term\r\ncare applicant or recipient who became incapable of indicating intent after age\r\n20, the state of residence is the state in which the individual is physically\r\npresent unless another state makes the placement.
\r\n\r\n\r\n\r\n
Source: 11 SDR 86, effective December 30,\r\n1984; transferred from § 67:16:18:04.08, effective August 23, 1992;\r\ntransferred from § 67:46:03:12, 41 SDR 93, effective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1.
\r\n\r\nLaw Implemented: SDCL 28-6-1.
\r\n\r\n\r\n\r\n
Cross-Reference: Residency -- Placement by\r\nstates in an out-of-state long-term care facility, § 67:46:01:18; State\r\nresidence -- Individuals age 21 and over, 42 C.F.R. § 435.403(i) (July 12,\r\n2006).
\r\n\r\n\r\n\r\n
67:46:01:26. Residency\r\ndeterminations -- Individuals aged 21 and over not residing in a long-term care\r\nfacility. The state of residence for individuals aged 21 and over who are\r\nnot residing in a long-term care facility is one of the following:
\r\n\r\n\r\n\r\n
(1) The state where the individual is\r\nliving and
\r\n\r\n\r\n\r\n
(a) intends to reside, including\r\nwithout a fixed address; or
\r\n\r\n(b) has entered the state with a\r\njob commitment or seeking employment, whether or not currently employed;
\r\n\r\n\r\n\r\n
(2) The state where the individual is\r\nliving if the individual is incapable of stating intent for residency.
\r\n\r\n\r\n\r\n
Source: 11 SDR 86, effective December 30,\r\n1984; transferred from § 67:16:18:04.09, effective August 23, 1992; 41 SDR\r\n7, effective July 29, 2014; transferred from § 67:46:03:13, 41 SDR 93,\r\neffective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1.
\r\n\r\nLaw Implemented: SDCL 28-6-1.
\r\n\r\n\r\n\r\n
Cross-Reference: State residence, 42 C.F.R.\r\n435.403(i) (July 12, 2006).
\r\n\r\n\r\n\r\n
67:46:01:27. Disputed residency\r\ncases. If two states dispute an individual's state of residence and the\r\ndispute cannot be resolved according to §§ 67:46:01:17 to 67:46:01:26,\r\ninclusive, the state where the individual is physically located is the state of\r\nresidence.
\r\n\r\n\r\n\r\n
Source: 11 SDR 86, effective December 30,\r\n1984; transferred from § 67:16:18:04.10, effective August 23, 1992;\r\ntransferred from § 67:46:03:14, 41 SDR 93, effective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1.
\r\n\r\nLaw Implemented: SDCL 28-6-1.
\r\n\r\n\r\n\r\n
67:46:01:28. Residence determination\r\nwhen individual leaves the state. The South Dakota residency requirement\r\nfor an applicant or recipient of long-term care assistance, in case of\r\ntemporary leave from the state, shall be determined according to the following\r\nguidelines:
\r\n\r\n\r\n\r\n
(1) An individual who leaves the state\r\nby choice without a declared intent to return is not considered a resident of\r\nthis state for the purpose of determining eligibility for long-term care\r\nassistance;
\r\n\r\n\r\n\r\n
(2) Assistance from South Dakota shall\r\nbe terminated when a recipient meets the residence requirements for long-term\r\ncare assistance in another state;
\r\n\r\n\r\n\r\n
(3) When an individual lives in another\r\nstate and declares an intention to make that state the individual's home, the\r\ndepartment shall request the individual to contact the other state agency and\r\napply for long-term care assistance. When the individual declares an intention\r\nto make another state the individual's home, long-term care assistance from\r\nSouth Dakota shall be discontinued; and
\r\n\r\n\r\n\r\n
(4) An individual who receives any form\r\nof long-term care assistance from another state is not entitled to long-term\r\ncare assistance from South Dakota in any month such assistance is received from\r\nthe other state whether or not the individual is physically present in South\r\nDakota.
\r\n\r\n\r\n\r\n
Source: 2 SDR 74, effective May 13, 1976; 7\r\nSDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982;\r\n10 SDR 39, effective November 1, 1983; transferred from § 67:16:18:05,\r\neffective August 23, 1992; transferred from § 67:46:03:15, 41 SDR 93,\r\neffective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1.
\r\n\r\nLaw Implemented: SDCL 28-6-1.
\r\n\r\n\r\n\r\n
Cross-Reference: Incapability of indicating\r\nintent, § 67:46:01:20.
\r\n\r\n\r\n\r\n