CHAPTER 67:46:05
\r\n\r\n\r\nLONG-TERM CARE\r\nRESOURCE REQUIREMENTS
\r\n\r\n\r\n\r\nSection
\r\n\r\n67:46:05:01 Definitions.
\r\n\r\n67:46:05:02 Value of liquid resources.
\r\n\r\n67:46:05:03 Value of nonliquid resources.
\r\n\r\n67:46:05:04 Determining fair market value.
\r\n\r\n67:46:05:05 Absence of a resource regulation.
\r\n\r\n67:46:05:06 Disposal of resources for purposes of\r\nestablishing eligibility.
\r\n\r\n67:46:05:06.01 Disposal of assets -- Look-back periods.
\r\n\r\n67:46:05:07 Return of transferred resource.
\r\n\r\n67:46:05:08 Life estate value.
\r\n\r\n67:46:05:08.01 Life estates purchased in another\r\nindividual's home.
\r\n\r\n67:46:05:09 Calculating period of ineligibility.
\r\n\r\n67:46:05:09.01 Repealed.
\r\n\r\n67:46:05:09.02 Ineligibility if assets transferred.
\r\n\r\n67:46:05:09.03 Repealed.
\r\n\r\n67:46:05:10 Period of ineligibility waived under\r\ncertain circumstances.
\r\n\r\n67:46:05:11 Rebuttal of intent to transfer.
\r\n\r\n67:46:05:12 Compensation for resource.
\r\n\r\n67:46:05:13 Repealed.
\r\n\r\n67:46:05:14 Repealed.
\r\n\r\n67:46:05:15 Home property exclusion.
\r\n\r\n67:46:05:16 Transfer of home property not affecting eligibility.
\r\n\r\n67:46:05:17 Transfer of property not affecting\r\neligibility.
\r\n\r\n67:46:05:18 Temporary absence from home property.
\r\n\r\n67:46:05:19 Home property abandonment.
\r\n\r\n67:46:05:20 Real property held in trust.
\r\n\r\n67:46:05:21 Nonbusiness income-producing property.
\r\n\r\n67:46:05:22 Nonbusiness property used to produce\r\ngoods or services.
\r\n\r\n67:46:05:23 Property representing governmental\r\nauthority.
\r\n\r\n67:46:05:24 Trade or business property.
\r\n\r\n67:46:05:25 Repealed.
\r\n\r\n67:46:05:26 Other property.
\r\n\r\n67:46:05:27 Conversion or sale of recipient's\r\nresource.
\r\n\r\n67:46:05:28 Sale price paid in installments.
\r\n\r\n67:46:05:29 Conversion of recipient's excludable\r\nresource.
\r\n\r\n67:46:05:30 Resource limit.
\r\n\r\n67:46:05:31 Personal property excluded from\r\nresources.
\r\n\r\n67:46:05:32 Trust considered a resource.
\r\n\r\n67:46:05:32.01 Establishment of trust.
\r\n\r\n67:46:05:32.02 Consideration of revocable and irrevocable\r\ntrusts.
\r\n\r\n67:46:05:32.03 Trusts excepted from consideration as a\r\nresource.
\r\n\r\n67:46:05:32.04 Trust waived under certain circumstances.
\r\n\r\n67:46:05:32.05 Trustee required to provide annual\r\naccounting.
\r\n\r\n67:46:05:33 Medicaid-qualifying trust.
\r\n\r\n67:46:05:33.01 Medicaid income trust.
\r\n\r\n67:46:05:34 Resource available under\r\nMedicaid-qualifying trust.
\r\n\r\n67:46:05:35 Bank accounts.
\r\n\r\n67:46:05:36 Savings bonds.
\r\n\r\n67:46:05:37 Life insurance.
\r\n\r\n67:46:05:38 Stocks, notes, loans, and mortgages.
\r\n\r\n67:46:05:39 Irrevocable prepaid burial contracts.
\r\n\r\n67:46:05:40 Income not spent in month received.
\r\n\r\n67:46:05:41 Distinguishing resources from income.
\r\n\r\n67:46:05:42 Resources considered.
\r\n\r\n67:46:05:43 Time of resource eligibility\r\ndetermination.
\r\n\r\n67:46:05:44 Burial spaces excluded from resources.
\r\n\r\n67:46:05:45 Separate burial funds excluded from\r\nresources.
\r\n\r\n67:46:05:46 Increase in value of excluded burial\r\nfunds.
\r\n\r\n67:46:05:47 Reductions to separate burial funds.
\r\n\r\n67:46:05:48 Repealed.
\r\n\r\n67:46:05:49 Retroactive\r\nSSI and retroactive retirement, survivors, and disability income payments.
\r\n\r\n67:46:05:50 Exclusion of agent orange settlement\r\npayments.
\r\n\r\n67:46:05:51 Assets held in common with another\r\nperson.
\r\n\r\n67:46:05:52 Disclosure of annuities.
\r\n\r\n67:46:05:53 Annuities -- Department becomes remainder\r\nbeneficiary.
\r\n\r\n67:46:05:54 Repealed.
\r\n\r\n67:46:05:55 Treatment\r\nof admission or entrance fee of applicant or recipient residing in continuing\r\ncare retirement or life care community.
\r\n\r\n\r\n\r\n67:46:05:01. Definitions. Terms\r\nused in this chapter mean:
\r\n\r\n\r\n\r\n
(1) "Assets," the income and\r\nresources of an individual and the individual's spouse, including any income or\r\nresource which the individual or the individual's spouse is entitled to receive\r\nbut does not because of some action or inaction on the part of any of the\r\nindividuals listed in § 67:46:05:32.01;
\r\n\r\n\r\n\r\n
(2) "Contiguous property,"\r\nall land adjacent to the home including land separated only by roads, rivers,\r\nstreams, and similar features and not separated by intervening property owned\r\nby another person;
\r\n\r\n\r\n\r\n
(3) "Equity" or "equity\r\nvalue," the fair market value of property less any encumbrances. Future\r\ninterest owed as a result of the debt is not considered in establishing equity\r\nvalue;
\r\n\r\n\r\n\r\n
(4) "Fair market value," the\r\namount for which the property can be expected to sell on the open market in the\r\ngeographic area involved under existing economic conditions;
\r\n\r\n\r\n\r\n
(5) "Home property," a\r\nshelter which the individual owns and which is used as the individual's\r\nprincipal place of residence, including the buildings and contiguous property;
\r\n\r\n\r\n\r\n
(6) "Liquid resources,"\r\nassets which are in cash or payable in cash on demand or financial instruments\r\nwhich can be converted into cash within 20 workdays. Liquid resources include\r\ncash on hand, savings or checking accounts, stocks, bonds, mutual fund shares,\r\npromissory notes, mortgages, contracts for deed, and similar properties;
\r\n\r\n\r\n\r\n
(7) "Nonliquid resources,"\r\nall resources other than liquid resources and excluded resources. Nonliquid\r\nresources include real, personal, or business property such as inventories,\r\nlivestock, implements, vehicles, stored grain, and similar properties;
\r\n\r\n\r\n\r\n
(8) "Other real property,"\r\nreal property other than that having the characteristics of home property or\r\nreal property held in trust;
\r\n\r\n\r\n\r\n
(9) "Real property," real\r\nproperty as defined in SDCL 43-1-3;
\r\n\r\n\r\n\r\n
(10) "Real property held in\r\ntrust," real property to which the federal government has the legal title\r\nbut which is being held for the benefit of citizens;
\r\n\r\n\r\n\r\n
(11) "Transfer," any action\r\nor inaction taken by an individual or the individual's spouse or someone acting\r\non behalf of or at the request of the individual or the individual's spouse\r\nwhich results in loss of possession, ownership of a lesser share, or less\r\ncontrol or access by an individual of any interest in income or real or\r\npersonal property, including items such as a gift, a disclaimer of inheritance,\r\nor an assignment; or any action that results in reducing the amounts which an\r\nindividual might otherwise claim from any source, including items such as a\r\ndecedent's estate, a trust or similar legal device, or an obligation from\r\nsomeone required by law to furnish support;
\r\n\r\n\r\n\r\n
(12) "Trust" or "Similar\r\nlegal device," any arrangement, instrument, or device, such as an annuity,\r\nescrow account, pension fund, or investment account, in which another entity\r\ncontrols an individual's funds and has a duty to that individual to follow the\r\ninstructions of the arrangement, instrument, or device; and
\r\n\r\n\r\n\r\n
(13) "Vested right" or\r\n"life estate interest," the immediate fixed right of possession or\r\nfuture enjoyment of property by an individual or individuals.
\r\n\r\n\r\n\r\n
Source: 2 SDR 74, effective May 13, 1976; 4\r\nSDR 10, effective August 28, 1977; 5 SDR 109, effective July 1, 1979; 7 SDR 23,\r\neffective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR\r\n170, effective June 21, 1982; 17 SDR 187, effective June 3, 1991; transferred\r\nfrom § 67:16:20:01, effective August 23, 1992; 21 SDR 162, effective March\r\n23, 1995; 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-References:
\r\n\r\nReal and personal property distinguished, SDCL 43-1-3.
\r\n\r\nHomestead limited to house or mobile home and\r\nappurtenant buildings -- Business place -- Minimum size of mobile home, SDCL 43-31-2.
\r\n\r\nHomestead containing one or more lots or tracts of\r\nland -- Contiguous tracts -- Use in good faith, SDCL 43-31-3.
\r\n\r\nLimited area of homestead -- Mineral lands, SDCL 43-31-4.
\r\n\r\n\r\n\r\n
67:46:05:02. Value of liquid resources. Liquid resources,\r\nother than cash, are valued according to their equity values.
\r\n\r\n\r\nSource:\r\n8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983;\r\ntransferred from § 67:16:20:01.01, effective August 23, 1992.
\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\n67:46:05:03. Value of nonliquid\r\nresources.Nonliquid resources are valued\r\naccording to their equity value, except as otherwise provided for automobiles.
\r\n\r\n\r\nSource:\r\n7 SDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1,\r\n1981; transferred from § 67:16:20:01.02, effective August 23, 1992.
\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\nPersonal property excluded from resources, § 67:46:05:31.
\r\n\r\n\r\n67:46:05:04. Determining fair market\r\nvalue. The fair market value of property or contractual rights to receive\r\nmoney must be determined by one of the following:
\r\n\r\n\r\n\r\n
(1) A real estate appraiser;
\r\n\r\n(2) A Bureau of Indian Affairs realty\r\noffice;
\r\n\r\n(3) An average of three estimates from\r\nindividuals, other than the applicant or recipient, who are familiar with\r\nproperty values within the geographic area;
\r\n\r\n(4) A Farm Home Administration office;
\r\n\r\n(5) A bank or savings and loan\r\nofficial;
\r\n\r\n(6) An agency that specializes in\r\ndiscounting contractual rights using amortization schedules, current property\r\nvalues, or other pertinent data; or
\r\n\r\n(7) One hundred percent of the county\r\ntax valuation unless:
\r\n\r\n\r\n\r\n
a. The county tax valuation notice\r\nis more than a year old based on its date of issue; or
\r\n\r\n\r\n\r\n
b. The county tax valuation notice\r\npertains to a special purpose assessment, unless it also provides a fair market\r\nvalue assessment, which can be used; or
\r\n\r\n\r\n\r\n
c. The county tax valuation\r\nassessment is under appeal; or
\r\n\r\n\r\n\r\n
d. The county tax valuation\r\nassessment is based on something other than fair market value, such as\r\nagricultural, mining or industrial; or
\r\n\r\n\r\n\r\n
e. The county tax valuation notice\r\nprovides either no assessment ratio or only a range.
\r\n\r\n\r\n\r\n
The applicant or recipient must provide\r\ndocumentation to the department which establishes the property's or contract's\r\nfair market value. The department reserves the right to obtain and use\r\nindependent fair market valuations when, in its judgment, the valuations\r\nsubmitted are too high or too low.
\r\n\r\n\r\n\r\n
The initial value of a life estate is determined\r\naccording to § 67:46:05:08.
\r\n\r\n\r\n\r\n
The initial value of contractual rights to receive\r\ninstallment payments for property that was sold is determined according to\r\n§ 67:46:05:28.
\r\n\r\n\r\n\r\n
Source: 17 SDR 187, effective June 3, 1991;\r\ntransferred from § 67:16:20:01.03, effective August 23, 1992; 21 SDR 162,\r\neffective March 23, 1995; 25 SDR 13, effective August 9, 1998; 41 SDR 93,\r\neffective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1(4)(6), 28-6-3.1.
\r\n\r\nLaw Implemented: SDCL 28-6-1(4)(6), 28-6-3.1.
\r\n\r\n\r\n\r\n
67:46:05:05. Absence of a resource regulation. In the\r\nabsence of specific regulations or resource requirements for long-term care\r\nassistance not otherwise defined in this article, decisions shall be based on\r\nthe current SSI regulations as provided in 42 U.S.C. §§ 1382 and 1383.
\r\n\r\n\r\nSource:\r\n2 SDR 74, effective May 13, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981;\r\ntransferred from § 67:16:20:02, effective August 23, 1992.
\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\n67:46:05:06.01. Disposal of assets\r\n-- Look-back periods. The department shall use the following look-back\r\nperiods when determining whether an asset was transferred for less than fair\r\nmarket value:
\r\n\r\n\r\n\r\n
(1) The look-back period extends back\r\nto the date 60 months before the first date on which the individual is\r\ninstitutionalized and applies for long-term care assistance; and
\r\n\r\n\r\n\r\n
(2) If the asset was transferred to a\r\ntrust or similar legal device, the look-back period extends back to the date 60\r\nmonths before the first date the individual is institutionalized and applies\r\nfor long-term care assistance.
\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
Cross-Reference: Look-back period, 42\r\nU.S.C. § 1396p(c)(1)(B)(i).
\r\n\r\n\r\n\r\n
67:46:05:07. Return of transferred\r\nresource. If the asset which was transferred according to\r\n§ 67:46:05:06 is returned to the individual and the individual notifies\r\nthe Department as required by § 67:46:02:09 and provides the Department\r\nwith verification of the return, all eligibility conditions, including the\r\nresource limit, will be reevaluated.
\r\n\r\n\r\n\r\n
Source: 8 SDR 170, effective June 21, 1982;\r\n9 SDR 133, effective April 27, 1983; transferred from § 67:16:20:02.02,\r\neffective August 23, 1992; 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
67:46:05:08. 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 inaccurate 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.
67:46:05:09. Calculating period of ineligibility. The\r\ndepartment shall establish a period of ineligibility for long-term care\r\nservices if an asset has been disposed of for the purpose of establishing\r\nMedicaid eligibility. The period of ineligibility is determined by dividing the\r\nuncompensated value of the transferred assets by the monthly state-wide average\r\nof long-term care costs for private pay individuals for the state's current\r\nfiscal year.
\r\n\r\n\r\nThe department shall impose a partial\r\nmonth period of ineligibility if the sum arrived at in the above calculation\r\nresults in a partial month remainder, rounded up to a whole day.
\r\n\r\n\r\nSource:\r\n16 SDR 10, effective July 23, 1989; 16 SDR 203, effective May 27, 1990;\r\ntransferred from § 67:16:20:02.04, effective August 23, 1992; 19 SDR 141,\r\neffective March 25, 1993; 21 SDR 162, effective March 23, 1995; 22 SDR 188,\r\neffective July 8, 1996; 31 SDR 107, effective February 1, 2005.
\r\n\r\nGeneral\r\nAuthority: SDCL 28-6-1, 28-6-3.1.
\r\n\r\nLaw\r\nImplemented: SDCL 28-6-3.1.
\r\n\r\n\r\nCross-References:\r\nDisposal of resources for purposes of establishing eligibility, § 67:46:05:06;\r\nFacility's average per diem charge, § 67:16:04:58.
\r\n\r\n\r\n67:46:05:09.01. Ineligibility when assets transferred before\r\nJuly 1, 1994.Repealed.
\r\n\r\n\r\nSource:\r\n21 SDR 162, effective March 23, 1995; repealed, 30 SDR 193, effective June 13,\r\n2004.
\r\n\r\n\r\n67:46:05:09.02. Ineligibility if\r\nassets transferred. If an asset is disposed of for the purpose of\r\nestablishing Medicaid eligibility and the asset was disposed of for less than\r\nfair market value within the look-back periods established in\r\n§ 67:46:05:06.01, the period of ineligibility is determined under the\r\nprovisions of § 67:46:05:09.
\r\n\r\n\r\n\r\n
The department shall apportion the number of\r\nmonths of ineligibility equally between the individual receiving home and\r\ncommunity based or nursing facility services and the individual's spouse who is\r\napplying for home and community based or nursing facility services if the\r\nfollowing conditions exist:
\r\n\r\n\r\n\r\n
(1) Both the individual and the\r\nindividual's spouse are residing in a nursing facility or receiving home and\r\ncommunity based waiver services or if one spouse is in a nursing facility and\r\nthe other is receiving home and community based waiver services;
\r\n\r\n\r\n\r\n
(2) The department had previously\r\ndetermined that the individual residing in a nursing facility or receiving home\r\nand community based waiver services was ineligible because of a transfer and\r\nthe individual is currently serving out a period of ineligibility; and
\r\n\r\n\r\n\r\n
(3) The spouse would otherwise be\r\neligible for nursing facility or home and community based waiver services\r\nexcept for the period of ineligibility.
\r\n\r\n\r\n\r\n
If more than one transfer occurs, the periods of\r\nineligibility are consecutive. If a period of ineligibility is in effect and a\r\ntransfer occurs, the period of ineligibility for the additional transfer is\r\nadded to the period of ineligibility already in effect.
\r\n\r\n\r\n\r\n
If the individual is an applicant, the period of\r\nineligibility begins the date the applicant is eligible for nursing facility or\r\nhome and community based waiver services but for the period of ineligibility or\r\nthe date after a prior period of ineligibility has ended, whichever is later.\r\nIf the individual is a recipient, the period of ineligibility begins with the\r\ndate the applicant became eligible for nursing facility or home and community\r\nbased waiver services, the first day of the month after the transfer occurred,\r\nor the date after a prior period of ineligibility has ended, whichever is\r\nlater.
\r\n\r\n\r\n\r\n
Source: 21 SDR 162, effective March 23,\r\n1995; 30 SDR 193, effective June 13, 2004; 31 SDR 107, effective February 1,\r\n2005; 33 SDR 44, effective August 31, 2006; 41 SDR 93, effective December 3,\r\n2014; 43 SDR 31, effective September 12, 2016.
\r\n\r\nGeneral Authority: SDCL 28-6-1, 28-6-3.1.
\r\n\r\nLaw Implemented: SDCL 28-6-3.1.
\r\n\r\n\r\n\r\n
Cross-References:
\r\n\r\nDisposal of resources for purposes of establishing\r\neligibility, § 67:46:05:06.
\r\n\r\nLengthening look-back period for all disposals to\r\nfive years, 42 U.S.C. § 1396p(c)(1)(B)(i).
\r\n\r\nAuthority for states to accumulate multiple\r\ntransfers into one penalty period, 42 U.S.C. § 1396p(c)(1)(H).
\r\n\r\n\r\n\r\n
67:46:05:09.03. Assets disposed of\r\nto establish eligibility -- Ineligibility for services. Repealed.
\r\n\r\n\r\n\r\n
Source: 21 SDR 162, effective March 23,\r\n1995; 41 SDR 93, effective December 3, 2014; 46 SDR 50, effective October 10,\r\n2019.
\r\n\r\n\r\n\r\n
67:46:05:10. Period of ineligibility\r\nwaived under certain circumstances. The department may waive the period of\r\nineligibility specified in §§ 67:46:05:09 and 67:46:05:15 if:
\r\n\r\n\r\n\r\n
(1) The individual or someone acting on\r\nthe individual's behalf provides clear and convincing evidence that the\r\nindividual has no other means of support and denial of nursing facility or home\r\nand community based waiver services assistance would deprive the individual of\r\nfood, clothing, shelter, or other necessities of life or medical care, the\r\nabsence of which would endanger the individual's health or life; and
\r\n\r\n\r\n\r\n
(2) The individual or someone acting on\r\nthe individual's behalf must either demand the return of the asset that was\r\ntransferred or receive the fair market value for the asset; and
\r\n\r\n\r\n\r\n
(3) If the asset is not returned upon\r\ndemand or fair market value is not received, the individual or someone acting\r\non the individual's behalf must either:
\r\n\r\n\r\n\r\n
(a) Retain an attorney who must\r\ninitiate a civil action for the recovery of the asset or its fair market value;\r\nor
\r\n\r\n\r\n\r\n
(b) If the transfer was the result\r\nof a crime of theft or exploitation, the individual or someone acting on the\r\nindividual's behalf must report the incident to a local law enforcement agency.
\r\n\r\n\r\n\r\n
The home and community based waiver provider or\r\nthe nursing facility in which the individual is residing may file a waiver\r\napplication on behalf of the individual if the waiver application is done with\r\nthe consent of the individual or the individual's personal representative.
\r\n\r\n\r\n\r\n
An individual may appeal a denial of a waiver\r\nrequest under the provisions of chapter 67:17:02. The burden of proof is with\r\nthe individual and there must be clear and convincing evidence that justifies\r\nthe waiver.
\r\n\r\n\r\n\r\n
Source: 16 SDR 10, effective July 23, 1989;\r\n16 SDR 203, effective May 27, 1990; 17 SDR 187, effective June 3, 1991;\r\ntransferred from § 67:16:20:02.05, effective August 23, 1992; 33 SDR 44,\r\neffective August 31, 2006; 35 SDR 166, effective December 24, 2008; 41 SDR 93,\r\neffective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1, 28-6-3.1.
\r\n\r\nLaw Implemented: SDCL 28-6-3.1, Pub. L. No. 100-360 (102 Stat. 761).
\r\n\r\n\r\n\r\n
Cross-References:
\r\n\r\nDisposal of resources for purposes of\r\nestablishing eligibility, § 67:46:05:06.
\r\n\r\nNotice of right to request waiver of period of\r\nineligibility -- Right to request waiver -- Assets transferred at less than\r\nfair market value, § 67:46:08:05.
\r\n\r\nAvailability of hardship waivers, 42 U.S.C.\r\n§ 1396p(c)(2)(D).
\r\n\r\nFacility may file for waiver on behalf of\r\ninstitutionalized individual, 42 U.S.C. § 1396p(c)(2)(D).
\r\n\r\n\r\n\r\n
67:46:05:11. Rebuttal of intent to transfer. Intent to\r\ntransfer a resource for purposes of establishing eligibility for services under\r\nthis article may be rebutted. The individual or the individual's spouse must be\r\nable to show that there were other resources at the time the transfer was made\r\nwhich met the individual's care and maintenance needs and there was no evidence\r\nof a disability or medical condition which would have required long-term care\r\nassistance or an increased expense beyond the current or future means of\r\nfinancial support.
\r\n\r\n\r\nThe provisions of this section do not\r\napply to Medicaid-qualifying trusts.
\r\n\r\n\r\nSource:\r\n17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:02.06,\r\neffective August 23, 1992.
\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\nDisposal of resources for purposes of\r\nestablishing eligibility, § 67:46:05:06.
\r\n\r\nMedicaid-qualifying trust,\r\n§ 67:46:05:33.
\r\n\r\nResource available under\r\nMedicaid-qualifying trust, § 67:46:05:34.
\r\n\r\n\r\n67:46:05:12. Compensation for\r\nresource. The compensation for a resource includes all money, real or\r\npersonal property, food, shelter, or services received by the individual or\r\neligible spouse at or after the time of transfer in exchange for the resource only\r\nif the compensation was provided pursuant to a binding and legally enforceable\r\nagreement in effect at the time of the transfer. Compensation also includes all\r\nmoney, real or personal property, food, shelter, or services received prior to\r\nthe actual transfer if they were provided pursuant to a written, binding and\r\nlegally enforceable agreement in effect at the time the compensation for the\r\nresource is provided whereby the eligible individual would transfer the\r\nresource or otherwise pay for such items.
\r\n\r\n\r\n\r\n
Source: 17 SDR 187, effective June 3, 1991;\r\ntransferred from § 67:16:20:02.07, effective August 23, 1992; 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
67:46:05:13. Availability of income\r\nand resources. Repealed.
\r\n\r\n\r\n\r\n
Source: 2 SDR 74, effective May 13, 1976; 7\r\nSDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1,\r\n1981; 8 SDR 170, effective June 21, 1982; 17 SDR 187, effective June 3, 1991;\r\ntransferred from § 67:16:20:03, effective August 23, 1992; repealed, 41\r\nSDR 93, effective December 3, 2014.
\r\n\r\n\r\n\r\n
67:46:05:14. Classification of real\r\nproperty. 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 § 67:16:20:04, effective August 23, 1992; repealed, 41 SDR\r\n93, effective December 3, 2014.
\r\n\r\n\r\n\r\n
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, 2023, 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), 28-6-17.
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\r\neligibility. A transfer of home property by an applicant for or recipient\r\nof long-term care services does not affect eligibility when the transfer is to\r\none of the following individuals:
\r\n\r\n\r\n(1) A spouse;
\r\n\r\n\r\n(2) A son or daughter under\r\nage 21;
\r\n\r\n\r\n(3) A son or daughter\r\nmeeting the SSI definition of blind or disabled;
\r\n\r\n\r\n(4) A son or daughter who\r\nhas resided in the home for at least two years immediately prior to the date\r\nthe applicant or recipient entered the long-term care facility and who provided\r\ncare to the applicant or recipient which enabled the applicant or recipient to\r\nremain at home rather than enter a medical institution or a skilled or\r\nintermediate care facility; or
\r\n\r\n\r\n(5) A brother or sister who\r\nhas an equity interest in the home property and who resided in the home for at\r\nleast one year immediately prior to the date the applicant or recipient entered\r\nthe medical institution or a skilled or intermediate care facility.
\r\n\r\n\r\nSource:\r\n16 SDR 10, effective July 23, 1989; transferred from § 67:16:20:05.01,\r\neffective August 23, 1992.
\r\n\r\nGeneral\r\nAuthority: SDCL 28-6-1, 28-6-3.1.
\r\n\r\nLaw\r\nImplemented: SDCL 28-6-3.1, Pub. L. No. 100-360 (102 Stat. 761).
\r\n\r\n\r\nCross-References:\r\nDetermination of disability, § 67:46:03:18; Determination of blindness,\r\n§ 67:46:03:19.
\r\n\r\n\r\n67:46:05:17. Transfer of property not affecting eligibility.\r\nA transfer of a resource does not affect eligibility for long-term care\r\nservices when the transfer is to a son or daughter meeting the definition of\r\nblind or disabled according to §§ 67:46:03:02, 67:46:03:18, and\r\n67:46:03:19 or when the transfer is from one spouse to another or to another\r\nperson for the sole benefit of the spouse.
\r\n\r\n\r\nA transfer after August 10, 1993, does\r\nnot affect eligibility for long-term care services when the transfer is to a\r\ntrust established solely for the benefit of one of the following:
\r\n\r\n\r\n(1) A son or daughter who\r\nmeets the definition of disabled or blind according to §§ 67:46:03:02,\r\n67:46:03:18, and 67:46:03:19;
\r\n\r\n\r\n(2) An individual under age\r\n65 who meets the definition of disabled according to § 67:46:03:18;\r\nor
\r\n\r\n\r\n(3) An individual who has a\r\nMedicaid income trust and the amount placed into the trust does not exceed\r\namounts necessary to pay the monthly nursing facility rate.
\r\n\r\n\r\nSource:\r\n16 SDR 203, effective May 27, 1990; transferred from § 67:16:20:05.02,\r\neffective August 23, 1992; 21 SDR 162, effective March 23, 1995.
\r\n\r\nGeneral\r\nAuthority: SDCL 28-6-1, 28-6-3.1.
\r\n\r\nLaw\r\nImplemented: SDCL 28-6-1, 28-6-3.1.
\r\n\r\n\r\nCross-Reference:\r\nMedicaid income trust, § 67:46:05:33.01.
\r\n\r\n\r\n67:46:05:18. Temporary absence from home property. In\r\norder to establish temporary absence as opposed to home property abandonment,\r\nthe individual must present convincing evidence at the time of application,\r\nsuch as a physician's statement, indicating that residence in the long-term\r\ncare facility is temporary. Temporary absence must be reestablished at 12-month\r\nintervals. Home property is abandoned if the individual is unable to provide\r\nconvincing evidence that the absence is temporary or that a return to the home\r\nis realistic.
\r\n\r\n\r\nSource:\r\n2 SDR 74, effective May 13, 1976; 5 SDR 109, effective July 1, 1979; 7 SDR 23,\r\neffective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR\r\n170, effective June 21, 1982; 17 SDR 187, effective June 3, 1991; transferred\r\nfrom § 67:16:20:08, effective August 23, 1992.
\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\nTransfer of home property not\r\naffecting eligibility, § 67:46:05:16.
\r\n\r\nConversion of recipient's excludable\r\nresource, § 67:46:05:29.
\r\n\r\nResource limit, § 67:46:05:30.
\r\n\r\n\r\n67:46:05:19. Home property abandonment. Home property is\r\nconsidered a nonliquid resource to the individual\r\nwhen it no longer can be excluded under § 67:46:05:15 or 67:46:05:18. Admission of the individual into a long-term\r\ncare facility or another change in residence, whichever occurs first, is\r\npresumed to be establishing another principal place of residence.
\r\n\r\n\r\nSource:\r\n2 SDR 74, effective May 13, 1976; 4 SDR 10, effective August 28, 1977; 7 SDR\r\n66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR\r\n133, effective April 27, 1983; 17 SDR 187, effective June 3, 1991; transferred\r\nfrom § 67:16:20:09, effective August 23, 1992.
\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\n67:46:05:20. Real property held in trust. Real property\r\nheld in trust is not considered a resource for long-term care assistance if the\r\napplicant or recipient has restricted access to the principal, which includes\r\nrequired approval of the secretary of interior or a duly appointed\r\nrepresentative.
\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 § 67:16:20:11,\r\neffective August 23, 1992.
\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, § 67:46:05:01; Exclusion of Indian lands, 20 C.F.R. § 416.1234.
\r\n\r\n\r\n67:46:05:21. Nonbusiness\r\nincome-producing property. Income-producing real or personal property is\r\nexcluded as a resource if it meets the following requirements:
\r\n\r\n\r\n\r\n
(1) It is essential to self-support;
\r\n\r\n\r\n\r\n
(2) The individual's equity in the\r\nproperty is less than $6,000; and
\r\n\r\n\r\n\r\n
(3) The individual's net annual return\r\non the equity is at least six percent. The net annual return requirement must\r\nbe met every year. However, if the property produces less because of\r\ncircumstances beyond the individual's control, there must be a reasonable\r\nexpectation that the property will again produce six percent income within 24\r\nmonths following the last day of the tax year in which the income fell below\r\nsix percent of the equity.
\r\n\r\n\r\n\r\n
If equity in the property exceeds $6,000 and the\r\nsix percent net annual return is met, the equity in excess of $6,000 must be\r\ncombined with other countable resources and applied toward the resource limit.
\r\n\r\n\r\n\r\n
If the net annual return is less than six percent\r\nof the equity value, the total equity is an includable resource.
\r\n\r\n\r\n\r\n
If more than one nonbusiness income-producing\r\nproperty is involved, the total equity value of all nonbusiness\r\nincome-producing property is considered within the $6,000 limit and the return\r\nrate of six percent of equity applies to each property. Any property which does\r\nnot meet the six percent return rate must be counted toward the resource limit\r\ntogether with any equity which exceeds the $6,000 limit.
\r\n\r\n\r\n\r\n
Liquid resources are not considered property\r\nessential to self-support except when used as part of a trade or business.
\r\n\r\n\r\n\r\n
Source: 2 SDR 74, effective May 13, 1976; 4\r\nSDR 10, effective August 28, 1977; 7 SDR 66, 7 SDR 89, effective July 1, 1981;\r\n8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; 13 SDR\r\n8, effective August 3, 1986; 17 SDR 187, effective June 3, 1991; transferred\r\nfrom § 67:16:20:13, effective August 23, 1992; 41 SDR 93, effective\r\nDecember 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:
\r\n\r\nResource limit, § 67:46:05:30.
\r\n\r\nExclusion of property of a trade or business\r\nessential to self-support, 20 C.F.R. § 416.1222.
\r\n\r\nExclusion of nonbusiness property essential to\r\nself-support, 20 C.F.R. § 416.1224.
\r\n\r\n\r\n\r\n
67:46:05:22. Nonbusiness property\r\nused to produce goods or services. Personal property such as equipment and\r\ntools which is essential for the individual's daily activities for self-support\r\nis excluded from resources as long as the equity value does not exceed $6,000.
\r\n\r\n\r\nReal property used to produce food or\r\nlivestock for personal consumption in the individual's home is excluded from\r\nresources as long as the equity value does not exceed $6,000.
\r\n\r\n\r\nAny equity value in excess of $6,000\r\nmust be included as a resource.
\r\n\r\n\r\nThe six percent net annual return\r\nprovisions required under § 67:46:05:21 do not apply to property meeting\r\nthe conditions of this section.
\r\n\r\n\r\nSource:\r\n17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:13.01,\r\neffective August 23, 1992.
\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\n67:46:05:23. Property representing\r\ngovernmental authority. Property essential to self-support which represents\r\nthe authority granted by a government agency to engage in an income-producing\r\nactivity, such as a special license or permit, is an excluded resource.
\r\n\r\n\r\n\r\n
Source: 17 SDR 187, effective June 3, 1991;\r\ntransferred from § 67:16:20:13.02, effective August 23, 1992; 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
67:46:05:24. Trade or business\r\nproperty. Real or personal property essential for self-support is excluded\r\nfrom resources if it is used for the individual's trade, business, or\r\nemployment. If the property is normally used for these purposes but is not currently\r\nbeing used because of circumstances beyond the individual's control, the\r\nproperty is excluded from resources when there is a reasonable expectation that\r\nthe use will resume within 12 months from its last use. If the property is not\r\nbeing used because the individual is disabled, the property is excluded from\r\nresources when there is a reasonable expectation that the use will resume\r\nwithin 24 months of its last use.
\r\n\r\n\r\n\r\n
Source: 17 SDR 187, effective June 3, 1991;\r\ntransferred from § 67:16:20:13.03, effective August 23, 1992; 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
67:46:05:25. Property not considered essential to\r\nself-support.Repealed.
\r\n\r\n\r\nSource:\r\n17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:13.04,\r\neffective August 23, 1992; 21 SDR 162, effective March 23, 1995; repealed, 30\r\nSDR 193, effective June 13, 2004.
\r\n\r\n\r\n67:46:05:26. Other property. Real or personal property\r\nowned by the applicant or recipient which produces no income or is not excluded\r\nin this chapter shall be considered a resource according to its equity value.
\r\n\r\n\r\nSource:\r\n2 SDR 74, effective May 13, 1976; 4 SDR 10, effective August 28, 1977; 7 SDR\r\n23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8\r\nSDR 170, effective June 21, 1982; transferred from § 67:16:20:14,\r\neffective August 23, 1992.
\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\n67:46:05:27. Conversion or sale of recipient's resource.\r\nThe conversion or sale of a recipient's resource may not be considered as\r\nincome. The changed resource, whether liquid or nonliquid\r\nin nature, is a resource subject to all the resource criteria for continuing\r\neligibility and is considered a countable resource in the month following the\r\nmonth in which the conversion occurred.
\r\n\r\n\r\nSource:\r\n2 SDR 74, effective May 13, 1976; 7 SDR 23, effective September 18, 1980; 7 SDR\r\n66, 7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR\r\n133, effective April 27, 1983; transferred from § 67:16:20:15, effective\r\nAugust 23, 1992.
\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\n67:46:05:28. Sale price paid in\r\ninstallments. If an individual is entitled to receive installment payments\r\nfor property that was sold, the current balance of the unpaid principal is\r\nconsidered a resource for eligibility purposes.
\r\n\r\n\r\n\r\n
Source: 8 SDR 170, effective June 21, 1982;\r\ntransferred from § 67:16:20:15.01, effective August 23, 1992; 20 SDR 170,\r\neffective April 21, 1994; 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
67:46:05:29. Conversion\r\nof recipient's excludable resource. An excludable resource which is\r\nconverted to a nonexcludable resource is considered in the resource limit the\r\nfirst day of the month following the conversion. A resource which loses its exclusionary\r\nstatus is considered in the resource limit the first day of the month following\r\nthe change of status.
\r\n\r\n\r\nSource:\r\n8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983; 17 SDR\r\n187, effective June 3, 1991; transferred from § 67:16:20:15.02, effective\r\nAugust 23, 1992.
\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\n67:46:05:30. Resource limit. The\r\nresource limit, including both liquid and nonliquid resources, for long-term\r\ncare assistance is $2,000 for an individual and $3,000 for an individual with a\r\nspouse if both spouses begin receiving long-term care services in the same\r\nmonth.
\r\n\r\n\r\n\r\n
Source: 2 SDR 74, effective May 13, 1976; 4\r\nSDR 10, effective August 28, 1977; 7 SDR 23, effective September 18, 1980; 7\r\nSDR 66, 7 SDR 89, effective July 1, 1981; 9 SDR 133, effective April 27, 1983;\r\n12 SDR 153, effective March 23, 1986; 13 SDR 145, effective April 12, 1987; 14\r\nSDR 87, effective December 27, 1987; transferred from § 67:16:20:16,\r\neffective August 23, 1992; 30 SDR 193, effective June 13, 2004; 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: Limitation on resources,\r\n20 C.F.R. § 416.1205.
\r\n\r\n\r\n\r\n
67:46:05:31. Personal property\r\nexcluded from resources. The following items shall be excluded when\r\ndetermining the value of resources:
\r\n\r\n\r\n\r\n
(1) One automobile is excluded\r\nregardless of its value if it is used for necessary transportation for the\r\nindividual or couple or a member of the individual's or couple's household; and
\r\n\r\n\r\n\r\n
(2) Household goods, personal effects,\r\nand all items essential to everyday living.
\r\n\r\n\r\n\r\n
Source: 2 SDR 74, effective May 13, 1976; 4\r\nSDR 10, effective August 28, 1977; 7 SDR 23, effective September 18,1980; 7 SDR\r\n66, 7 SDR 89, effective July 1, 1981; 13 SDR 8, effective August 3, 1986;\r\ntransferred from § 67:16:20:17, effective August 23, 1992; 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: Exclusion of household\r\ngoods and personal effects, 20 C.F.R. § 416.1216;\r\nExclusion of the automobile, 20 C.F.R. § 416.1218.
\r\n\r\n\r\n\r\n
67:46:05:32. Trust considered a resource. If the\r\nindividual, the individual's spouse, or someone, including a court or\r\nadministrative body, authorized to act on behalf of the individual or the\r\nindividual's spouse has the legal power to dissolve the trust or invade the\r\nprincipal and use the proceeds, the principal of the trust is considered a\r\nresource.
\r\n\r\n\r\nSource:\r\n2 SDR 74, effective May 13, 1976; 5 SDR 109, effective July 1, 1979; 7 SDR 23,\r\neffective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 17\r\nSDR 187, effective June 3, 1991; transferred from § 67:16:20:18, effective\r\nAugust 23, 1992; 20 SDR 170, effective April 21, 1994; 21 SDR 162, effective\r\nMarch 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\n\r\nConsideration of revocable and\r\nirrevocable trusts, § 67:46:05:32.02.
\r\n\r\nTrusts excepted from consideration as\r\na resource, § 67:46:05:32.03.
\r\n\r\nIncome from trust, § 67:46:04:16.
\r\n\r\n\r\n67:46:05:32.01. Establishment of trust. The department\r\nconsiders that an individual has established a trust or similar legal device if\r\nassets of the individual were used to form all or part of the corpus of the\r\ntrust and if the trust was established by one of the following persons:
\r\n\r\n\r\n(1) The individual;
\r\n\r\n\r\n(2) The individual's\r\nspouse;
\r\n\r\n\r\n(3) A person, including any\r\ncourt or administrative body, with legal authority to act in place of or on\r\nbehalf of the individual or the individual's spouse; or
\r\n\r\n\r\n(4) A person, including any\r\ncourt or administrative body, acting at the direction or request of the\r\nindividual or the individual's spouse.
\r\n\r\n\r\nThe provisions of this section do not\r\napply to testamentary trusts.
\r\n\r\n\r\nSource:\r\n20 SDR 170, effective April 21, 1994; 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-Reference:\r\nConsideration of revocable and irrevocable trusts, § 67:46:05:32.02.
\r\n\r\n\r\n67:46:05:32.02. Consideration of revocable and irrevocable\r\ntrusts. A trust or similar legal device established under the provisions of\r\n§ 67:46:05:32.01 is subject to this section regardless of the purpose for\r\nwhich it is established, whether the trustee has or exercises any discretion\r\nunder the trust, whether there are restrictions on when or whether distribution\r\nmay be made from the trust, or whether there are restrictions on the use of any\r\ndistribution from the trust.
\r\n\r\n\r\nIf the trust is a revocable trust, the\r\nprincipal of the trust is considered a resource which is available to the\r\nindividual. A payment from the trust to or for the benefit of the individual is\r\nconsidered income to the individual. Except for trustee and legal fees, any\r\nother payment made from the trust is considered a resource which was disposed\r\nof by the individual to establish eligibility for Medicaid.
\r\n\r\n\r\nIf the trust is an irrevocable trust\r\nand contains any provisions under which payment from the trust may be made to\r\nor for the benefit of the individual, the entire portion of the principal or\r\nincome on the principal from which payment to the individual could be made is\r\nconsidered a resource and any payment from that portion of the principal or\r\nincome to or for the benefit of the individual is considered income to the\r\nindividual. Except for trustee and legal fees, any other payment made from the\r\ntrust is considered a resource which was disposed of by the individual to\r\nestablish eligibility for Medicaid. The department considers any portion of the\r\nprincipal or income on the principal from which a payment to the individual or\r\nfor the benefit of the individual may not be made under any circumstances to be\r\na resource which was transferred for purposes of establishing eligibility for\r\nMedicaid.
\r\n\r\n\r\nSource:\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\nTrusts excepted from consideration as a resource,\r\n§ 67:46:05:32.03.
\r\n\r\n\r\n67:46:05:32.03. Trusts\r\nexcepted from consideration as a resource. Except for payments from the\r\ntrust to the beneficiary or for the benefit of the beneficiary,\r\n§ 67:46:05:32.02 does not apply to any of the following trusts:
\r\n\r\n\r\n\r\n
(1) A Medicaid income\r\ntrust created under the provisions of § 67:46:05:33.01;
\r\n\r\n\r\n\r\n
(2) An irrevocable\r\ntrust\r\nthat contain
\r\n\r\n
(3) An irrevocable\r\ntrust\r\nthat\r\ncontains
\r\n\r\n
(a) The trust is\r\nestablished and managed by a nonprofit association;
\r\n\r\n\r\n\r\n
(b) The\r\nassociation maintains
\r\n\r\n
(c) The accounts\r\nin the pool are
\r\n\r\n
(d) The trust provide
\r\n\r\n
(e) Funds of an\r\nindividual age 65 or older that are transferred to this trust are subject to\r\nthe transfer penalty provisions contained in chapter 67:46:05.
\r\n\r\n\r\n\r\n
Source: 21 SDR 162,\r\neffective March 23, 1995; 36 SDR 215, effective July 1, 2010; 46 SDR 50,\r\neffective October 10, 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:\r\nDetermination of disability, § 67:46:03:18.
\r\n\r\n\r\n\r\n
67:46:05:32.04. Trust waived under certain circumstances. If\r\nan individual is determined ineligible because of a trust, the department may\r\nwaive its consideration of the trust as an available resource if the individual\r\ncan clearly show that all efforts have been made to recover assets placed into\r\nthe trust and the individual's continuing care or well-being is seriously\r\nthreatened because of the ineligibility for long-term care assistance.
\r\n\r\n\r\nSource:\r\n21 SDR 162, effective March 23, 1995.
\r\n\r\nGeneral\r\nAuthority: SDCL 28-6-1, 28-6-3.1.
\r\n\r\nLaw\r\nImplemented: SDCL 28-6-3.1.
\r\n\r\n\r\nCross-Reference:\r\nDisposal of resources for purposes of establishing eligibility, § 67:46:05:06.
\r\n\r\n\r\n67:46:05:32.05. Trustee required to provide annual accounting.\r\nThe trustee must provide the department with an annual accounting of the\r\ntrust’s financial transactions. Failure to provide the accounting may result in\r\nineligibility for the beneficiary.
\r\n\r\n\r\nSource:\r\n31 SDR 107, effective February 1, 2005.
\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\n67:46:05:33. Medicaid-qualifying trust. A\r\nMedicaid-qualifying trust is a nontestamentary trust\r\nor a similar legal device established before August 11, 1993, by the individual\r\nor the individual's spouse or by someone acting on the individual's or spouse's\r\nbehalf that uses the individual's or spouse's funds. Under the terms of the\r\ntrust, the individual may be the beneficiary of all or part of the payments\r\nfrom the trust or similar legal device and the distribution of payments is determined by one or more trustees who are permitted to\r\nexercise discretion regarding the distribution to the individual.
\r\n\r\n\r\nThis section applies regardless of the\r\npurpose for which the trust was established.
\r\n\r\n\r\nSource:\r\n17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:18.01,\r\neffective August 23, 1992; 20 SDR 170, effective April 21, 1994.
\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\nDisposal of resources for purposes of establishing eligibility, § 67:46:05:06;\r\nTreatment of potential payments from Medicaid qualifying trusts, 42 U.S.C. § 1396(a)(k).
\r\n\r\n\r\n67:46:05:33.01. Medicaid income trust. A Medicaid income\r\ntrust is a nontestamentary trust or a similar legal\r\ndevice established after August 10, 1993, for the sole benefit of the\r\nbeneficiary. A Medicaid income trust must meet the following requirements:
\r\n\r\n\r\n(1) It is composed only of\r\nthe beneficiary's own pension, social security, or other income;
\r\n\r\n\r\n(2) It requires the\r\ntrustee, without option or discretion, to pay monthly to the beneficiary the\r\namount of income paid into the trust. However, the amount paid to the\r\nbeneficiary may not exceed 300 percent of the maximum SSI standard benefit\r\namount when added to the beneficiary's other monthly income not paid into the\r\ntrust;
\r\n\r\n\r\n(3) It requires the trustee\r\nto pay monthly to the nursing facility, HCBS, or HCBWS provider the amount of\r\nincome remaining in the trust to reduce the payment amount needed from the\r\ndepartment. However, the trustee may encroach upon income remaining in the\r\ntrust for the direct administration of the trust and for items necessary for\r\nthe beneficiary's health if such items are not covered by medical assistance or\r\nthe long-term care facility; and
\r\n\r\n\r\n(4) It provides that upon\r\nthe death of the individual and before any other distribution is made from the\r\ntrust, the department must receive all amounts remaining in the trust up to an\r\namount equal to the total medical assistance paid on behalf of the beneficiary\r\nafter September 30, 1993.
\r\n\r\n\r\nIf income placed in the trust exceeds\r\nthe amount paid out of the trust for medical services, the excess is subject to\r\npenalties under the transfer of assets provisions in this chapter.
\r\n\r\n\r\nSource:\r\n20 SDR 170, effective April 21, 1994; 30 SDR 193, effective June 13, 2004; 31\r\nSDR 107, effective February 1, 2005.
\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\nSSI standard benefit amount,\r\n§ 67:46:04:13.
\r\n\r\nDefinition of HCBS,\r\n§ 67:54:04:01.
\r\n\r\nDefinition of HCBWS,\r\n§ 67:44:03:01.
\r\n\r\n\r\n67:46:05:34. Resource available under Medicaid-qualifying\r\ntrust. The amount considered available to an individual from a\r\nMedicaid-qualifying trust is the maximum undistributed amount that may be\r\npermitted under the terms of the trust assuming the full exercise of discretion\r\nby the trustee, whether or not discretion is exercised. The maximum amount available is a resource.
\r\n\r\n\r\nSource:\r\n17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:18.02,\r\neffective August 23, 1992.
\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\nTreatment of potential payments from Medicaid qualifying trusts, 42 U.S.C.\r\n§ 1396(a)(k).
\r\n\r\n\r\n67:46:05:35. Bank accounts.\r\nDeposits in a bank, savings and loan, or similar institution are considered\r\nliquid resources whether they are in the form of a checking or savings account\r\nor a certificate of deposit. Deposits held in joint accounts are considered\r\navailable to the applicant or recipient when the applicant or recipient has\r\ncontrol or can direct the disposition of funds from the accounts. Accounts held\r\nin joint ownership with other eligible individuals are divided equally among\r\nthe eligible individuals. Deposits counted as income in the month the income\r\nwas received are not a countable resource until the month following the month\r\nof receipt of the income.
\r\n\r\n\r\n\r\n
Source: 2 SDR 74, effective May 13, 1976; 7\r\nSDR 23, effective September 18, 1980; 7 SDR 66, 7 SDR 89, effective July 1,\r\n1981; 8 SDR 170, effective June 21, 1982; transferred from § 67:16:20:19,\r\neffective August 23, 1992; 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
67:46:05:36. Savings bonds.\r\nSavings bonds are considered a liquid asset to the extent of their current\r\nvalue. Bonds held in co-ownership with another person are deemed available to\r\nthe applicant or recipient when the applicant or recipient is the actual purchaser\r\nor has the authority to cause the bond to be cashed. Bonds purchased with money\r\nthat was counted as income in the month the income was received are not a\r\ncountable resource until the month following the month of receipt of the\r\nincome.
\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 § 67:16:20:20,\r\neffective August 23, 1992; 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
67:46:05:39. Irrevocable prepaid burial contracts.\r\nIrrevocable prepaid burial contracts between an applicant or recipient and\r\nanother person for the purpose of defraying burial expenses shall be excluded\r\nas a resource.
\r\n\r\n\r\nSource:\r\n2 SDR 74, effective May 13, 1976; 5 SDR 109, effective July 1, 1979; 7 SDR 66,\r\n7 SDR 89, effective July 1, 1981; 8 SDR 170, effective June 21, 1982; 9 SDR\r\n133, effective April 27, 1983; transferred from § 67:16:20:24, effective\r\nAugust 23, 1992.
\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\nPrearranged funeral trusts, ch 55-11.
\r\n\r\n\r\n67:46:05:40. Income not spent in month received. Income\r\nreceived during a month that is not spent but is actually saved becomes a\r\nresource in the following month.
\r\n\r\n\r\nSource:\r\n8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983;\r\ntransferred from § 67:16:20:25, effective August 23, 1992.
\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\n67:46:05:41. Distinguishing resources from income.\r\nResources are those assets an individual or couple already has at the beginning\r\nof a month or at the time of application which are not counted as income for\r\nthat month. Income, in general, is money received by an individual or couple\r\nduring a particular month.
\r\n\r\n\r\nSource:\r\n8 SDR 170, effective June 21, 1982; 9 SDR 133, effective April 27, 1983;\r\ntransferred from § 67:16:20:26, effective August 23, 1992.
\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\n67:46:05:42. Resources considered.\r\nFor purposes of determining eligibility for long-term care services or medical\r\nassistance, the department considers resources according to the following:
\r\n\r\n\r\n\r\n
(1) For an unmarried individual, the\r\ndepartment considers only the individual's resources;
\r\n\r\n\r\n\r\n
(2) For a child born in a hospital and\r\ncontinuously hospitalized for 30 or more consecutive days from the date of\r\nbirth, the department considers only the resources available to the child\r\nduring this confinement. The parent's or stepparent's resources are not\r\nconsidered;
\r\n\r\n\r\n\r\n
(3) For a child who does not meet the\r\ncriteria contained in subdivision (2) of this section, the department considers\r\nthe parent's or stepparent's resources available to the child in the calendar\r\nmonth of entry to the hospital, nursing facility, or intermediate care\r\nfacility. After the calendar month of entry, the department considers only the\r\nresources of the parent or stepparent that are actually contributed to the\r\nchild;
\r\n\r\n\r\n\r\n
(4) For a married individual who\r\nentered a hospital, nursing facility, or intermediate care facility before\r\nSeptember 30, 1989, and who since September 30, 1989, has not had 30\r\nconsecutive days out of the facility, the department considers only those\r\nresources owned by the applicant;
\r\n\r\n\r\n\r\n
(5) For a married couple of which only\r\none spouse enters a hospital, nursing facility, or intermediate care facility\r\nbut is not expected to remain there for 30 consecutive days, the department\r\nconsiders the couple's combined resources available to each other. If the\r\nspouse's stay exceeds 29 days, the requirements of chapter 67:46:07 apply;
\r\n\r\n\r\n\r\n
(6) For a married couple of which only\r\none spouse participates in either an HCBS or HCBWS program but is not expected\r\nto receive services for 30 consecutive days, the department considers the\r\ncouple's combined resources 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\r\n
(7) For a married couple living\r\ntogether during the calendar month that one spouse enters into assisted living\r\nor adult foster care, the department considers the couple's combined resources\r\navailable to each other in the calendar month of entry. After the calendar\r\nmonth of entry, the department considers only those resources owned by the\r\napplicant. If the spouse is entering an assisted living facility and is\r\nreceiving HCBS or HCBWS, the provisions of subdivision (5) apply; and
\r\n\r\n\r\n\r\n
(8) For a married couple of which both\r\nspouses enter a nursing facility during the same calendar month, the department\r\nconsiders the couple's combined resources available to each other for the\r\ncalendar month of entry. After the calendar month of entry, their resources are\r\nconsidered separately regardless of room occupancy.
\r\n\r\n\r\n\r\n
Source: 8 SDR 170, effective June 21, 1982;\r\n9 SDR 133, effective April 27, 1983; 11 SDR 34, effective September 6, 1984; 12\r\nSDR 153, effective March 23, 1986; 17 SDR 187, effective June 3, 1991;\r\ntransferred from § 67:16:20:27, effective August 23, 1992; 20 SDR 92,\r\neffective December 21, 1993; 20 SDR 170, effective April 21, 1994; 30 SDR 193,\r\neffective June 13, 2004; 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-References:
\r\n\r\nResource limit, § 67:46:05:30.
\r\n\r\nCommunity spouses, ch 67:46:07.
\r\n\r\nDefinition of HCBS, § 67:54:04:01.
\r\n\r\nDefinition of HCBWS, § 67:44:03:01.
\r\n\r\n\r\n\r\n
67:46:05:43. Time of resource eligibility determination.\r\nAn applicant's resource eligibility is determined as of 12:01 a.m. on the first\r\nday of the month of application. A recipient's resource eligibility is redetermined as of 12:01 a.m. on the first day of each\r\nmonth. If the applicant's or recipient's resources exceed the maximum resource\r\nlimit as of 12:01 a.m. on the first day of the month but is within the limit at\r\nsome time during the month, the applicant or recipient is resource eligible for\r\nthe entire month.
\r\n\r\n\r\nSource:\r\n9 SDR 133, effective April 27, 1983; transferred from § 67:16:20:28,\r\neffective August 23, 1992; 30 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\nCross-References:\r\nResponsibility for information, § 67:46:03:01; Separate burial funds\r\nexcluded from resources, § 67:46:05:45.
\r\n\r\n\r\n67:46:05:44. Burial spaces excluded from resources.\r\nBurial spaces owned by the applicant or recipient are excluded from resources\r\nif intended for use by any of the following individuals:
\r\n\r\n\r\n(1) The applicant or\r\nrecipient and the applicant's or recipient's spouse;
\r\n\r\n(2) The applicant's or\r\nrecipient's minor and adult children, stepchildren, and adopted children; or
\r\n\r\n(3) The applicant's or\r\nrecipient's brothers, sisters, parents, adoptive parents, and the spouses of\r\nthese persons.
\r\n\r\n\r\nBurial spaces include gravesites,\r\ncrypts, mausoleums, urns or other repositories, caskets, concrete vaults, and\r\ngrave markers. If burial space items are listed in a contract for services for\r\na future need, these are classified as burial funds under § 67:46:05:45.
\r\n\r\n\r\nSource:\r\n9 SDR 133, effective April 27, 1983; transferred from § 67:16:20:29,\r\neffective August 23, 1992.
\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\nResources defined -- Burial plots, 20 C.F.R. § 416.1201(a)(1).
\r\n\r\n\r\n67:46:05:45. Separate burial funds excluded from resources.\r\nFunds up to $1,500 each for the applicant or recipient and the applicant's or\r\nrecipient's spouse may be separately set aside for burial and excluded from the\r\napplicant's or recipient's resources. Funds separately set aside for burial\r\ninclude revocable burial contracts, burial trusts, or any other separately\r\nidentifiable assets intended for burial expenses. If the funds are mixed with\r\nother resources not intended for burial, the exclusion does not apply to any\r\nportion of the funds and the funds shall be treated as nonexcluded\r\nresources.
\r\n\r\n\r\nThe separate funds shall be clearly\r\ndesignated as burial funds. If the separate funds are not clearly designated,\r\nthe funds may be excluded if the applicant states that the applicant intends to\r\nuse the funds for burial and submits documentary evidence of clearly designated\r\nfunds within 30 days from the date of application. This is an exception to\r\n§ 67:46:05:43.
\r\n\r\n\r\nSource:\r\n9 SDR 133, effective April 27, 1983; transferred from § 67:16:20:30,\r\neffective August 23, 1992.
\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\n67:46:05:46. Increase in value of\r\nexcluded burial funds. An increase in the value of excluded burial funds\r\ndue to interest which was left to accumulate and become a part of a separately\r\nidentifiable burial fund is excluded from resources.
\r\n\r\n\r\n\r\n
An increase in the value of an excluded burial\r\nspace is excluded from resources.
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Source: 9 SDR 133, effective April 27,\r\n1983; 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:31,\r\neffective August 23, 1992; 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.
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67:46:05:47. Reductions to separate burial funds. The\r\n$1,500 amount for separate burial funds allowed by § 67:46:05:45 shall be\r\nreduced by the equity value of an irrevocable burial trust, contract, or other\r\nirrevocable arrangement which is available to meet the applicant's or\r\nrecipient's burial expenses and the face value of an insurance policy of $1,500\r\nor less on the applicant's or recipient's life if the policy is owned by the\r\napplicant or recipient or the applicant's or recipient's spouse and if the cash\r\nsurrender value of the policy has been excluded from resources under § 67:46:05:30.
\r\n\r\n\r\nSource:\r\n9 SDR 133, effective April 27, 1983; transferred from § 67:16:20:32,\r\neffective August 23, 1992.
\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\nResource limit, § 67:46:05:30.
\r\n\r\nSeparate burial funds excluded from\r\nresources, § 67:46:05:45.
\r\n\r\nLife insurance, § 67:46:05:37.
\r\n\r\n\r\n67:46:05:48. Pension funds.\r\nRepealed.
\r\n\r\n\r\n\r\n
Source: 15 SDR 2, effective July 17, 1988;\r\ntransferred from § 67:16:20:33, effective August 23, 1992; repealed, 41\r\nSDR 93, effective December 3, 2014.
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67:46:05:49. Retroactive SSI and\r\nretroactive retirement, survivors, and disability income payments.\r\nRetroactive SSI payments and retroactive retirement, survivors, and disability\r\nincome payments are excluded from resources for nine calendar months following\r\nthe month of receipt.
\r\n\r\n\r\n\r\n
Source: 17 SDR 187, effective June 3, 1991;\r\ntransferred from § 67:16:20:34, effective August 23, 1992; 20 SDR 92,\r\neffective December 21, 1993; 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
67:46:05:50. Exclusion of agent orange settlement payments.\r\nPayments received pursuant to the agent orange product\r\nliability settlement are excluded from resources.
\r\n\r\n\r\nSource:\r\n17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:35,\r\neffective August 23, 1992.
\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\nPub. L. No. 101-201; Pub. L. No. 101-239.
\r\n\r\n\r\n67:46:05:51. Assets held in common with another person.\r\nIf an asset is held by an individual in common with another person in joint\r\ntenancy, tenancy in common, or similar arrangement, the asset or the affected\r\nportion of the asset is considered to have been transferred by the individual\r\nwhen any action by any of the individuals listed in § 67:46:05:32.01\r\nreduces or eliminates the individual's ownership or control of the asset.
\r\n\r\n\r\nWhen this occurs, the department shall\r\nestablish a period of ineligibility under the provisions of this chapter.
\r\n\r\n\r\nThe 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.
\r\n\r\n\r\nSource:\r\n21 SDR 162, effective March 23, 1995; 24 SDR 86, effective January 1, 1998
\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\n 67:46:05:54. Treatment\r\nof annuities. Repealed
\r\n\r\n
Source: 33 SDR 44,\r\neffective August 31, 2006; 35 SDR 166, effective December 24, 2008; 45 SDR 82,\r\neffective December 10, 2018.
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