CHAPTER 67:46:07
\r\n\r\n\r\nCOMMUNITY SPOUSES
\r\n\r\n\r\nSection
\r\n\r\n67:46:07:01 Definitions.
\r\n\r\n67:46:07:02 Assessment\r\nof community spouse's share of resources.
\r\n\r\n67:46:07:03 Repealed.
\r\n\r\n67:46:07:04 Application\r\nof existing resource rules to spousal share of resources.
\r\n\r\n67:46:07:05 Long-term\r\ncare eligibility.
\r\n\r\n67:46:07:06 Initial\r\nmonth of eligibility.
\r\n\r\n67:46:07:07 Retroactive\r\neligibility.
\r\n\r\n67:46:07:08 Consideration\r\nof resources at time of redetermination of eligibility or reapplication for\r\nassistance.
\r\n\r\n67:46:07:09 Determination\r\nof amount of long-term care assistance for institutionalized spouse.
\r\n\r\n67:46:07:10 Order\r\nof deductions from institutionalized spouse's income.
\r\n\r\n67:46:07:11 Deduction\r\nfor maintenance of community spouse.
\r\n\r\n67:46:07:12 Computation\r\nof community spouse's maintenance allowance and excess shelter allowance.
\r\n\r\n67:46:07:13 Deduction\r\nfor maintenance of dependents living with community spouse.
\r\n\r\n67:46:07:14 Determination\r\nof income of community spouse and dependents.
\r\n\r\n67:46:07:15 Loss\r\nof community spouse status.
\r\n\r\n67:46:07:16 Repealed.
\r\n\r\n67:46:07:17 Fair\r\nhearings.
\r\n\r\n\r\n\r\n67:46:07:01. Definitions. Terms defined in SDCL 28-6-16 have the same meaning in this chapter. In addition, terms used in this chapter mean:
\r\n\r\n\r\n(1) "Initial\r\neligibility," the original determination of eligibility during a\r\ncontinuous period of institutionalization.
\r\n\r\n\r\nSource:\r\n16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:01,\r\neffective August 23, 1992.
\r\n\r\n\r\n\r\n\r\n\r\n\r\n67:46:07:02. Assessment of community\r\nspouse's share of resources. The department shall assess a couple's\r\ncombined countable resources to determine the community spouse's share if all\r\nof the following occur:
\r\n\r\n\r\n\r\n
(1) An application for assistance with nursing\r\nfacility or home and community based waiver services has been made or an\r\ninstitutionalized spouse, the community spouse, or the couple's authorized\r\nrepresentative has requested the assessment;
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(2) The institutionalized spouse was\r\nadmitted to a hospital, nursing facility, or intermediate care facility or\r\nbegan receiving home and community based waivered services after September 29,\r\n1989, and is expected to remain in the facility or continue receiving home and\r\ncommunity-based waivered services for at least 30 consecutive days; and
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(3) The institutionalized spouse has a\r\ncommunity spouse.
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The department must complete the assessment within\r\n45 days of the request unless delay is due to nonreceipt of documentation or\r\nverification from the requesting party or a third party. The department may not\r\nuse the time standard as a waiting period or reason for not completing the\r\nassessment if documentation has been provided.
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The department shall apply the provisions of\r\nchapter 67:46:05 if the spouse is entering an assisted living facility and is\r\nnot receiving HCBS or HCBWS or is entering an adult foster care facility.
\r\n\r\n\r\n\r\n
Source: 16 SDR 203, effective May 27, 1990;\r\ntransferred from § 67:16:32:02, effective August 23, 1992; 30 SDR 193,\r\neffective June 13, 2004; 41 SDR 93, effective December 3, 2014; 43 SDR 31,\r\neffective September 12, 2016.
\r\n\r\nGeneral Authority: SDCL 28-6-1, 28-6-18.
\r\n\r\nLaw Implemented: SDCL 28-6-1, 28-6-18.
\r\n\r\n\r\n\r\n
Cross-References: Definition of HCBS,\r\n§ 67:54:04:01; Definition of HCBWS, § 67:44:03:01.
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67:46:07:03. Determination\r\nof spousal share. Repealed
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Source:\r\n16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:03,\r\neffective August 23, 1992; 30 SDR 166, effective July 1, 2004; 31 SDR 107,\r\neffective February 1, 2005; 33 SDR 124, effective January 2, 2007; 34 SDR 271,\r\neffective April 17, 2008; 35 SDR 234, effective April 1, 2009; 41 SDR 7,\r\neffective July 29, 2014; 41 SDR 218, effective June 30, 2014; 41 SDR 218,\r\neffective June 30, 2015; 44 SDR 94, effective December 4, 2017; 45 SDR 82,\r\neffective December 10, 2018.
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67:46:07:04. Application of existing resource rules to\r\nspousal share of resources. When determining the spousal share of\r\nresources, the department shall apply the rules established in chapter 67:46:05\r\nto both the institutionalized spouse and the community spouse.
\r\n\r\n\r\nSource:\r\n16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:04,\r\neffective August 23, 1992.
\r\n\r\n\r\n\r\n\r\n\r\n\r\n67:46:07:05. Long-term care\r\neligibility. Individuals wishing to apply for long-term care assistance\r\nmust apply as provided in chapter 67:46:02.
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Eligibility other than financial shall be\r\ndetermined according to chapters 67:46:01 and 67:46:03.
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Financial eligibility shall be determined\r\naccording to chapters 67:46:04 and 67:46:05.
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Source: 16 SDR 203, effective May 27, 1990;\r\ntransferred from § 67:16:32:05, effective August 23, 1992; 41 SDR 93,\r\neffective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1, 28-6-18.
\r\n\r\nLaw Implemented: SDCL 28-6-1, 28-6-18.
\r\n\r\n\r\n\r\n
67:46:07:06. Initial month of eligibility. When\r\ndetermining initial eligibility for long-term care assistance for an\r\ninstitutionalized spouse in a nursing or intermediate care facility or who is\r\nreceiving HCBS or HCBWS, the community spouse's share must be deducted from the\r\ncouple's total countable resources.
\r\n\r\n\r\nIf the institutionalized spouse was a\r\nformer recipient during the same continuous period of institutionalization,\r\nprovisions of § 67:46:07:08 apply.
\r\n\r\n\r\nSource:\r\n16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:06,\r\neffective August 23, 1992; 30 SDR 193, effective June 13, 2004.
\r\n\r\nGeneral\r\nAuthority: SDCL 28-6-1, 28-6-18.
\r\n\r\nLaw\r\nImplemented: SDCL 28-6-1, 28-6-18.
\r\n\r\n\r\nCross-References:\r\nDefinition of HCBS, § 67:54:04:01; Definition of HCBWS, § 67:44:03:01.
\r\n\r\n\r\n67:46:07:07. Retroactive eligibility. When determining\r\nretroactive eligibility at the time of the initial eligibility determination,\r\nthe department shall deduct the community spouse's share from the couple's\r\ncombined countable resources for each of the three retroactive months.
\r\n\r\n\r\nSource:\r\n16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:07,\r\neffective August 23, 1992.
\r\n\r\n\r\n\r\n\r\n\r\n\r\n67:46:07:08. Consideration of\r\nresources at time of redetermination of eligibility or reapplication for\r\nassistance. At the time of redetermination of eligibility or reapplication\r\nfor long-term care assistance during a continuous period of institutionalization,\r\nresources held by the institutionalized spouse shall be considered for\r\neligibility according to chapter 67:46:05.
\r\n\r\n\r\n\r\n
Source: 16 SDR 203, effective May 27, 1990;\r\ntransferred from § 67:16:32:08, effective August 23, 1992; 41 SDR 93,\r\neffective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1, 28-6-18.
\r\n\r\nLaw Implemented: SDCL 28-6-1, 28-6-18.
\r\n\r\n\r\n\r\n
Cross-Reference: Annual redetermination of\r\neligibility, § 67:46:02:08.
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67:46:07:09. Determination of amount\r\nof long-term care assistance for institutionalized spouse. Sections\r\n67:46:07:10 to 67:46:07:13, inclusive, and chapter 67:46:06, except for\r\n§§ 67:46:06:02, 67:46:06:03, and 67:46:06:07, shall be used to determine\r\nthe amount of long-term care assistance the institutionalized spouse is\r\neligible to receive from the department.
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Source: 16 SDR 203, effective May 27, 1990;\r\ntransferred from § 67:16:32:09, effective August 23, 1992; 41 SDR 93,\r\neffective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1, 28-6-18.
\r\n\r\nLaw Implemented: SDCL 28-6-1, 28-6-18.
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67:46:07:10. Order of deductions\r\nfrom institutionalized spouse's income. Deductions from the income of the\r\ninstitutionalized spouse shall be allowed in the following order:
\r\n\r\n\r\n\r\n
(1) The personal needs allowance\r\nspecified in § 67:46:06:05;
\r\n\r\n(2) The spousal maintenance and excess\r\nshelter allowance specified in § 67:46:07:12;
\r\n\r\n(3) The maintenance allowance for\r\ndependents living with the community spouse as specified in § 67:46:07:13;
\r\n\r\n(4) The deduction for premiums paid on\r\nhealth insurance policies according to § 67:46:07:04;\r\nand
\r\n\r\n(5) Unpaid medical expenses incurred\r\nduring a period which is no more than three months prior to the month of the\r\nmost recent application for long term care services. The expenses must have\r\nbeen for necessary medical or remedial care services recognized under state law\r\nand prescribed by a physician that are not covered by Medicaid or any third\r\nparty.
\r\n\r\n\r\n\r\n
Source: 16 SDR 203, effective May 27, 1990;\r\ntransferred from § 67:16:32:10, effective August 23, 1992; 41 SDR 93,\r\neffective December 3, 2014.
\r\n\r\nGeneral Authority: SDCL 28-6-1, 28-6-18.
\r\n\r\nLaw Implemented: SDCL 28-6-1, 28-6-18.
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67:46:07:11. Deduction for maintenance of community spouse.\r\nThe institutionalized spouse is allowed a deduction from the institutionalized\r\nspouse's income for the maintenance needs of the community spouse. The\r\ndeduction is that amount remaining after subtracting the community spouse's\r\nmonthly income from the maintenance allowance and any excess shelter allowance.
\r\n\r\n\r\nSource:\r\n16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:11,\r\neffective August 23, 1992.
\r\n\r\n\r\n\r\n\r\n\r\n\r\n67:46:07:12. Computation of community spouse's maintenance allowance and excess shelter allowance. The community spouse's monthly minimum maintenance allowance is one hundred fifty percent of the federal poverty income level, established in accordance with § 67:11:01:03, for two persons, divided by twelve.
The excess shelter allowance is determined by subtracting thirty percent of the minimum maintenance allowance from the community spouse's shelter costs. Shelter costs include rent or mortgage costs, trailer parking space fees, taxes and insurance on the premises, and condominium or cooperative maintenance charges for the couple's principal residence. Shelter costs also include the applicable supplemental nutrition assistance program utility allowance pursuant to § 67:13:01:02, 67:13:01:05, or 67:13:01:06.
Rent, mortgage, taxes, insurance, and condominium and cooperative maintenance charges paid less frequently than monthly are prorated.
The combined spousal allowances may not exceed four thousand sixty-six dollars and fifty cents, unless a greater allowance is provided for under a court order of support, or if, through the fair hearing process, it is determined that a greater need exists because of circumstances resulting in financial duress.
These allowances are not permissible if the institutionalized spouse does not make the income available to the community spouse.
Source: 16 SDR 203, effective May 27, 1990 and July 1, 1990; transferred from § 67:16:32:12, effective August 23, 1992; 19 SDR 141, effective March 25, 1993; 20 SDR 92, effective December 21, 1993; 20 SDR 170, effective April 21, 1994; 21 SDR 162, effective March 23, 1995; 31 SDR 107, effective February 1, 2005; 33 SDR 124, effective January 2, 2007; 34 SDR 271, effective April 17, 2007; 35 SDR 234, effective April 1, 2009; 41 SDR 7, effective July 29, 2014; 41 SDR 93, effective December 3, 2014; 41 SDR 218, effective June 30, 2015; 44 SDR 94, effective December 4, 2017; 47 SDR 24, effective September 10, 2020; 47 SDR 138, effective July 1, 2021; 48 SDR 131, effective July 4, 2022; 49 SDR 125, effective July 3, 2023; 51 SDR 3, effective June 30, 2024; 51 SDR 140, effective June 30, 2025; 52 SDR 125, effective July 1, 2026.
General Authority: SDCL 28-6-1, 28-6-18.
Law Implemented: SDCL 28-6-1(4)(6), 28-6-17, 28-6-18(6).
67:46:07:13. Deduction for maintenance of dependents living\r\nwith community spouse. The institutionalized spouse is allowed a deduction\r\nfrom the institutionalized spouse's income for the maintenance needs of\r\ndependents living with the community spouse. The allowable deduction is an\r\namount equal to the standard community spouse's maintenance allowance\r\ndetermined according to § 67:46:07:12, minus the dependents' monthly\r\nincome, the result divided by one-third.
\r\n\r\n\r\nThis deduction is permissible even if\r\nthe institutionalized spouse does not make the allowance available.
\r\n\r\n\r\nIf a greater income allowance is\r\nspecified under court order or through the fair hearing process, the greater\r\namount shall be used in place of the limits in this section.
\r\n\r\n\r\nFor purposes of this rule, the term\r\n"dependent" only includes minor or dependent children, dependent\r\nparents, or dependent siblings of the institutionalized or community spouse,\r\nincluding half-blood or adopted, who are living with\r\nand may be claimed by either spouse for income tax purposes.
\r\n\r\n\r\nSource:\r\n16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:13,\r\neffective August 23, 1992.
\r\n\r\n\r\n\r\n\r\n\r\n\r\n67:46:07:14. Determination of income of community spouse and\r\ndependents. When determining income for the community spouse or dependent,\r\nthe department shall apply §§ 67:46:04:01 to 67:46:04:09, inclusive.
\r\n\r\n\r\nSource:\r\n16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:14,\r\neffective August 23, 1992.
\r\n\r\n\r\n\r\n\r\n\r\n\r\n67:46:07:15. Loss of community spouse status. When a\r\nchange in circumstances results in an individual no longer having a community spouse or an\r\ninstitutionalized spouse, the community spouse status is considered lost at the\r\nbeginning of the first full calendar month following the change in\r\ncircumstance.
\r\n\r\n\r\nSource:\r\n16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:15,\r\neffective August 23, 1992.
\r\n\r\n\r\n\r\n\r\n\r\n\r\n67:46:07:16. Medical eligibility for\r\ncommunity spouse or dependent. Repealed.
\r\n\r\n\r\n\r\n
Source: 16 SDR 203, effective May 27, 1990;\r\ntransferred from § 67:16:32:16, effective August 23, 1992; repealed, 41\r\nSDR 93, effective December 3, 2014.
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67:46:07:17. Fair hearings. If either spouse is\r\ndissatisfied with the determinations made under this chapter, a fair hearing\r\nmay be requested only after the conditions contained in SDCL 28-6-17 have been met. Fair hearings shall be conducted according to chapter 67:17:02.
\r\n\r\n\r\nSource:\r\n16 SDR 203, effective May 27, 1990; transferred from § 67:16:32:17,\r\neffective August 23, 1992.
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