CHAPTER 67:46:04
LONG-TERM CARE INCOME REQUIREMENTS
Section
67:46:04:01 Scope of chapter.
67:46:04:02 Definitions.
67:46:04:03 Items not considered income when determining eligibility for long-term care or medical assistance.
67:46:04:04 Income from other benefit programs -- Overpayments.
67:46:04:05 Repealed.
67:46:04:06 Income considered in month received.
67:46:04:07 Repealed.
67:46:04:08 Income before application.
67:46:04:09 Repealed.
67:46:04:10 Income considered.
67:46:04:11 Repealed.
67:46:04:12 Repealed.
67:46:04:13 Department to refer certain individuals to Social Security Administration to apply for supplemental security income.
67:46:04:14 Ineligibility when income exceeds three hundred percent of maximum supplemental security income standard.
67:46:04:15 Ineligibility when income exceeds monthly care rates for assisted living or adult foster care.
67:46:04:16 Income from trust.
67:46:04:17 Repealed.
67:46:04:18 Repealed.
67:46:04:19 Repealed.
67:46:04:20 Absence of an income regulation.
67:46:04:01. Scope of chapter. The rules contained in\r\nthis chapter are used to determine if an individual is financially eligible,\r\nbased on the individual's current month's income, to receive long-term care\r\nassistance or medical assistance from the department.
\r\n\r\n\r\nSource:\r\n9 SDR 133, effective April 27, 1983; transferred from § 67:16:19:00,\r\neffective August 23, 1992; 20 SDR 92, effective December 21, 1993.
\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\n67:46:04:02. Definitions.\r\nTerms used in this chapter mean:
\r\n\r\n\r\n(1) "Assets," the\r\nincome and resources of an individual and the individual's spouse, including\r\nany income or resource which the individual or the individual's spouse is\r\nentitled to receive but does not because of some action or inaction on the part\r\nof any of the individuals listed in § 67:46:05:32.01;
\r\n\r\n\r\n(2) "Income,"\r\nunless specifically excluded in § 67:46:04:03, any money or in-kind\r\npayments before deductions;
\r\n\r\n\r\n(3) "Irregular\r\nincome," income received no more than once a calendar quarter from each\r\nincome source; and
\r\n\r\n\r\n(4) "Regular\r\nincome," income received more than once a calendar quarter from the same\r\nsource and at a relatively fixed amount.
\r\n\r\n\r\nSource:\r\n2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8\r\nSDR 170, effective June 21, 1982; 9 SDR 11, effective August 1, 1982; 9 SDR\r\n133, effective April 27, 1983; transferred from § 67:16:19:01, effective\r\nAugust 23, 1992; 21 SDR 162, effective March 23, 1995.
\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-References:\r\nThird-party liability, ch 67:16:26; Income from other benefit programs --\r\nOverpayments, § 67:46:04:04.
\r\n\r\n\r\n67:46:04:03. Items not considered income when determining\r\neligibility for long-term care or medical assistance. The following are not\r\nconsidered income when determining eligibility for long-term care or medical\r\nassistance:
\r\n\r\n\r\n(1) Third-party payments to\r\nmedical providers;
\r\n\r\n(2) County welfare payments\r\nto medical providers;
\r\n\r\n(3) Money paid by a school\r\ndistrict for educational purposes;
\r\n\r\n(4) Income tax or sales tax\r\nrefunds;
\r\n\r\n(5) Unearned irregular\r\nincome from all sources which totals $20 or less per month;
\r\n\r\n(6) The following payments\r\nfrom the Veterans' Administration:
\r\n\r\n\r\n(a) The $90 reduced\r\npension benefit for single veterans or surviving spouses of veterans in nursing\r\nfacilities who are Medicaid recipients;
\r\n\r\n(b) Aid and attendance\r\nallowance;
\r\n\r\n(c) The clothing\r\nallowance for veterans with a service-connected disability for which the\r\nveteran uses a prosthetic or orthopedic appliance;
\r\n\r\n(d) Educational\r\nassistance;
\r\n\r\n(e) A payment\r\nadjustment for unusual medical expenses; and
\r\n\r\n(f) A payment to a\r\nVietnam veteran's child who has spina bifida;
\r\n\r\n\r\n(7) Life insurance\r\ndividends;
\r\n\r\n(8) A benefit received\r\nunder the provisions of the Older Americans Act of 1965, except wages or\r\nsalary;
\r\n\r\n(9) A payment to a\r\nvolunteer under the National and Community Service Trust Act of 1993, such as\r\nfrom SCORE, AmeriCorp-VISTA, RSVP, senior companion\r\nprogram, or the foster grandparent program;
\r\n\r\n(10) A payment received\r\npursuant to the Agent Orange product liability settlement;
\r\n\r\n(11) A gift from a\r\ntax-exempt organization to a minor child who has a life-threatening condition;
\r\n\r\n(12) A hemophilia\r\nsettlement fund payment;
\r\n\r\n(13) Income of an SSI\r\nrecipient that is used toward an SSI approved plan for achieving self-support;
\r\n\r\n(14) Income provided to\r\nvictims of a presidentially-declared disaster from\r\nfederal programs and agencies, joint federal and state programs, state or local\r\ngovernment programs, or private organizations; and
\r\n\r\n(15) Income placed in a\r\ntrust under the provisions of § 67:46:05:32.03.
\r\n\r\n\r\nExcept for interest earned on unspent\r\npayments received under subsection (13) or (14), interest earned on unspent\r\nincome from the above excluded income sources is countable income when\r\ndetermining eligibility for long-term care or medical assistance.
\r\n\r\n\r\nSource:\r\n8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; 14 SDR\r\n87, effective December 27, 1987; transferred from § 67:16:19:01.01,\r\neffective August 23, 1992; 20 SDR 92, effective December 21, 1993; 30 SDR 193,\r\neffective 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\nCross-References:
\r\n\r\nDefinitions, § 67:46:04:02.
\r\n\r\nEarned income, 20 C.F.R.\r\n§ 416.1110.
\r\n\r\nWhen we count unearned income, 20\r\nC.F.R. § 416.1123(b)(3).
\r\n\r\nUnearned income we do not count, 20\r\nC.F.R. § 416.1124(c).
\r\n\r\nLimited, improved\r\npension for certain veterans receiving Medicaid-covered nursing home care, 38\r\nU.S.C. § 5503.
\r\n\r\nAid and attendance compensation for\r\nservice connected disability or death, 38 U.S.C. § 1114.
\r\n\r\nClothing allowance,\r\n38 U.S.C. § 1162.
\r\n\r\nDependency\r\ncompensation for unusual medical expenses, 38 U.S.C § 1315.
\r\n\r\nChildren of Vietnam\r\nveterans born with spina bifida, 38 U.S.C.\r\n§ 1805.
\r\n\r\nExclusion of payments received\r\npursuant to the Agent Orange product liability settlement, Pub. L. No. 101-201.
\r\n\r\n\r\n67:46:04:04. Income from other benefit programs --\r\nOverpayments. Income from other benefit programs includes amounts withheld\r\nby that program to recover overpayments made to an individual.
\r\n\r\n\r\nIf an applicant or recipient was\r\nreceiving long-term care assistance, medical assistance, adult foster care, or\r\nassisted living at the time an overpayment was made by the other benefit\r\nprogram and if the overpaid amount was considered as income by the department\r\nwhen received, the overpayment may not be reconsidered by the department at the\r\ntime the overpaid amount is subsequently withheld from the individual by the\r\nother benefit program.
\r\n\r\n\r\nSource:\r\nTransferred from § 67:16:19:09, 9 SDR 133, effective April 27, 1983;\r\ntransferred from § 67:16:19:01.02, effective August 23, 1992; 20 SDR 92,\r\neffective December 21, 1993.
\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\n67:46:04:05. Determining monthly\r\ngross income. Repealed.
\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\ntransferred from § 67:16:19:02, effective August 23, 1992; repealed, 41 SDR\r\n93, effective December 3, 2014.
\r\n\r\n\r\n\r\n
67:46:04:06. Income considered in month received. The\r\ndepartment considers income in the month received unless it is specifically\r\nexcluded in § 67:46:04:03.
\r\n\r\n\r\nSource:\r\n2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8\r\nSDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983;\r\ntransferred from § 67:16:19:03, effective August 23, 1992; 20 SDR 92,\r\neffective December 21, 1993.
\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-References:\r\nDefinitions, § 67:46:04:02; Income not spent in month received, § 67:46:05:40.
\r\n\r\n\r\n67:46:04:07. Irregular income totaling more than $20.Repealed.
\r\n\r\n\r\nSource:\r\n9 SDR 133, effective April 27, 1983; transferred from § 67:16:19:03.01,\r\neffective August 23, 1992; repealed, 20 SDR 92, effective December 21, 1993.
\r\n\r\n\r\n 67:46:04:08. Income\r\nbefore application. Income received by the applicant before the month of\r\ninitial application is not considered as income when determining eligibility\r\nfor long-term care assistance or medical assistance unless the application is\r\nfor retroactive medical eligibility as in § 67:
\r\n\r\n
Source: 2 SDR 74,\r\neffective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170,\r\neffective June 21, 1982; transferred from § 67:16:19:05, effective August\r\n23, 1992; 20 SDR 92, effective December 21, 1993; 46 SDR 50, effective October\r\n10, 2019.
\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: Disposal\r\nof resources for purposes of establishing eligibility for services,\r\n§ 67:46:05:06.
\r\n\r\n\r\n\r\n
67:46:04:09. Verification of income.\r\nRepealed.
\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; transferred from § 67:16:19:06,\r\neffective August 23, 1992; repealed, 41 SDR 93, effective December 3, 2014.
\r\n\r\n\r\n\r\n
67:46:04:10. Income considered. For purposes of\r\ndetermining eligibility for long-term care assistance, an individual's income\r\nis determined according to the following:
\r\n\r\n\r\n(1) For an unmarried\r\nindividual, the department considers only the individual's income;
\r\n\r\n\r\n(2) For a child born in a\r\nhospital and continuously hospitalized for 30 or more consecutive days from the\r\ndate of birth, the department considers only the income available to the child\r\nduring this confinement. The parent's or stepparent's income is not considered;
\r\n\r\n\r\n(3) For a child who does\r\nnot meet the criteria contained in subdivision (2) of this section, the\r\ndepartment considers the parent's or stepparent's income available to the child\r\nin the calendar month of entry to a hospital, nursing facility, or intermediate\r\ncare facility. After the calendar month of entry, the department considers only\r\nthe income of the parent or stepparent that is actually contributed to the\r\nchild;
\r\n\r\n\r\n(4) For a married couple,\r\nif one spouse enters a hospital, nursing facility, or intermediate care\r\nfacility and is not expected to remain in the facility for 30 consecutive days,\r\nthe department considers the couple's combined income available to each other.\r\nIf the spouse's stay exceeds 29 days, the requirements of chapter 67:46:07\r\napply;
\r\n\r\n\r\n(5) For a married couple of\r\nwhich only one spouse participates in either an HCBS or HCBWS program but is\r\nnot expected to receive services for 30 consecutive days, the department\r\nconsiders the couple's combined income available to each other. If the spouse's\r\nparticipation in HCBS or HCBWS exceeds 29 days, the requirements of chapter\r\n67:46:07 apply;
\r\n\r\n\r\n(6) For a married couple,\r\nif both spouses enter a long-term care facility during the same calendar month,\r\nthe department considers the couple's combined income available to each other\r\nand shared equally in the calendar month of entry regardless of room occupancy.\r\nAfter the calendar month of entry, the department treats the couple as separate\r\nindividuals and considers only that income which is actually available to the\r\nindividual; and
\r\n\r\n\r\n(7) For a married couple\r\nliving together during the calendar month that one spouse enters assisted\r\nliving or adult foster care, the department considers the couple's combined\r\nincome available to each other in the calendar month of entry. After the\r\ncalendar month of entry, the department considers only that income which is\r\navailable to the spouse in assisted living or adult foster care. If the spouse\r\nis entering an assisted living facility and is receiving benefits through HCBS\r\nor HCBWS, the provisions of subsection (5) apply.
\r\n\r\n\r\nSource:\r\n2 SDR 74, effective May 13, 1976; 4 SDR 10, effective August 28, 1977; 5 SDR\r\n109, effective July 1, 1979; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR\r\n170, effective July 21, 1982; 9 SDR 133, effective April 27, 1983; 11 SDR 34,\r\neffective September 6, 1984; 12 SDR 153, effective March 23, 1986; transferred\r\nfrom § 67:16:19:07, effective August 23, 1992; 20 SDR 92, effective\r\nDecember 21, 1993; 20 SDR 170, effective April 21, 1994; 30 SDR 193, effective\r\nJune 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\nCross-References:
\r\n\r\nFinancial\r\nresponsibility of relatives and other individuals, 42 C.F.R. § 435.602.
\r\n\r\nSpousal impoverishment, ch 67:46:07.
\r\n\r\n\r\n67:46:04:11. Twenty dollar income disregard for eligibility.Repealed.
\r\n\r\n\r\nSource:\r\n8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983;\r\ntransferred from § 67:16:19:07.01, effective August 23, 1992; repealed, 20\r\nSDR 92, effective December 21, 1993.
\r\n\r\n\r\n67:46:04:12. Twenty dollar income disregard -- Exceptions.Repealed.
\r\n\r\n\r\nSource:\r\n8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983;\r\ntransferred from § 67:16:19:07.02, effective August 23, 1992; repealed, 20\r\nSDR 92, effective December 21, 1993.
\r\n\r\n\r\n67:46:04:13. Department to refer certain individuals to Social Security Administration to apply for supplemental security income. The department must refer an individual to the Social Security Administration to apply for supplemental security income if the individual's income, minus twenty dollars, is less than:
(1) The standard thirty-dollar supplemental security income payment, if the individual is living in a medical or nursing facility; or
(2) The supplemental security income standard benefit amount of nine hundred ninety-four dollars, if the individual is not institutionalized but living in an adult foster care home or an assisted living facility.
Source: 2 SDR 74, effective May 13, 1976; 4 SDR 35, effective December 22, 1977; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; 15 SDR 2, effective July 17, 1988; 16 SDR 203, effective May 27, 1990; transferred from § 67:16:19:08, effective August 23, 1992; 20 SDR 92, effective December 21, 1993; 21 SDR 162, effective March 23, 1995; 22 SDR 188, effective July 8, 1996; 24 SDR 67, effective November 26, 1997; 26 SDR 99, effective January 30, 2000; 28 SDR 178, effective July 3, 2002; 30 SDR 193, effective June 13, 2004; 31 SDR 107, effective February 1, 2005; 33 SDR 124, effective January 2, 2007; 34 SDR 271, effective April 17, 2008; 35 SDR 234, effective April 1, 2009; 38 SDR 123, effective January 23, 2012; 41 SDR 7, effective July 29, 2014; 41 SDR 218, effective June 30, 2015.; 44 SDR 94, effective December 4, 2017; 47 SDR 24, effective September 10, 2020; 47 SDR 138, effective July 1, 2021; 48 SDR 131, effective July 4, 2022; 49 SDR 125, effective July 3, 2023; 51 SDR 3, effective June 30, 2024; 51 SDR 140, effective June 30, 2025; 52 SDR 125, effective July 1, 2026.
General Authority: SDCL 28-6-1.
Law Implemented: SDCL 28-6-1(4)(6).
Cross-Reference:
Long-term care residency requirement and beginning of eligibility, § 67:46:03:03.
67:46:04:14. Ineligibility when income exceeds three hundred percent of maximum supplemental security income standard. An individual who is in a medical or nursing facility or is participating in a home and community-based waiver program is ineligible to receive assistance under this article when the individual's monthly income exceeds three hundred percent of the maximum supplemental security income standard benefit amount.
Source: Transferred from § 67:46:04:13, 20 SDR 92, effective December 21, 1993; 41 SDR 193, effective December 3, 2014; 49 SDR 125, effective July 3, 2023.
General Authority: SDCL 28-6-1.
Law Implemented: SDCL 28-6-1.
Cross-References:
Long-term care residency requirement and beginning of eligibility, § 67:46:03:03.
Department to refer certain individuals to Social Security Administration to apply for supplemental security income, subdivision 67:46:04:13(2).
Medicaid income trust, § 67:46:05:33.01.
67:46:04:15. Ineligibility when\r\nincome exceeds monthly care rates for assisted living or adult foster care.\r\nAn individual not receiving home and community based waiver services and who is\r\nin an assisted living facility or in adult foster care is ineligible to receive\r\nassistance under this article when the individual's net income exceeds the\r\nmonthly care rates after application of the budgeting regulations contained in\r\n§§ 67:46:06:03 to 67:46:06:07, inclusive.
\r\n\r\n\r\n\r\n
Source: Transferred from\r\n§ 67:46:04:13, 20 SDR 92, effective December 21, 1993; 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: Long-term care residency\r\nrequirements and beginning of eligibility, § 67:46:03:03.
\r\n\r\n\r\n\r\n
67:46:04:16. Income from trust. The income from a trust\r\nthat is considered available to the beneficiary is the maximum payment that is\r\npermitted under the terms of the trust assuming the full exercise of discretion\r\nby the trustee, whether or not that discretion is exercised.
\r\n\r\n\r\nIf a trust instrument is not specific\r\nas to the beneficiary's ownership interest, the income is divided by the number\r\nof owners.
\r\n\r\n\r\nA payment made from the trust to the\r\nbeneficiary or for the benefit of the beneficiary is income and is considered\r\nunder the provisions of this chapter.
\r\n\r\n\r\nSource:\r\n20 SDR 92, effective December 21, 1993; 20 SDR 170, effective April 21, 1994;\r\n21 SDR 162, effective March 23, 1995.
\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:\r\nConsideration of revocable and irrevocable trusts, § 67:46:05:32.02.
\r\n\r\n\r\n67:46:04:17. Income from real\r\nproperty held in trust by the federal government. Repealed.
\r\n\r\n\r\n\r\n
Source: 20 SDR 144, effective March 10,\r\n1994; repealed, 41 SDR 93, effective December 3, 2014.
\r\n\r\n\r\n\r\n
67:46:04:18. Assets\r\nheld in common with another person. Repealed.
\r\n\r\n\r\n\r\n
Source: 21 SDR 162,\r\neffective March 23, 1995;\r\n43 SDR 31, effective September 12, 2016.
\r\n\r\n\r\n\r\n
67:46:04:19. Assets\r\ndisposed of to establish eligibility -- Ineligibility for services.
\r\n\r\n
Source: 21 SDR 162,\r\neffective March 23, 1995;\r\n43 SDR 31, effective September 12, 2016.
\r\n\r\n\r\n\r\n
67:46:04:20. Absence of an income\r\nregulation. In the absence of specific regulations or income requirements\r\nfor long-term care assistance not otherwise defined in this article, decisions\r\nshall be based on the current SSI regulations as provided in 42 U.S.C.\r\n§§ 1382 and 1383, as amended to July 1, 2014.
\r\n\r\n\r\n\r\n
Source: 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