Medicaid Estate Recovery in South Dakota

What is recovered

SDCL 28-6-23 makes medical assistance paid for an inpatient in a nursing facility, an intermediate care facility, or another medical institution a debt due the Department at any age.¹

For a recipient age 55 or older, SDCL 28-6-23 makes nursing facility, home and community based, intermediate care, hospital, and prescription drug services a debt due the Department.¹

For the any-age institutional debt, ARSD 67:48:02:02 lists a nursing home, an intermediate care facility for individuals with intellectual disabilities, an adult foster care home, an assisted living center, a hospital swingbed, and an institution for individuals with a mental disease.²

Who is subject to recovery

The Department may recover from the estate of any individual who was a recipient of covered services after July 1, 1994.³

Under SDCL 28-6-23.1, a claim may also be filed against the estate of a surviving spouse for the recipient's covered benefits.⁴

What counts as the estate

ARSD 67:48:02:01(2) reaches more than the probate estate: everything in the estate under SDCL 29A-1-201, plus any property in which the recipient held any legal title or interest at death.²

That includes assets passing to a survivor, heir, or assign through joint tenancy, tenancy in common, survivorship, a life estate, a living trust, or other arrangement, and any balance left in a prepaid burial trust or account after reasonable burial expenses are paid.²

When recovery is deferred or barred

The Department may not seek recovery while the recipient's spouse is living, or while there is a surviving child who is under age 21, blind, or disabled.³

Under ARSD 67:48:02:06, if the recipient owned or transferred assets that would have made the recipient ineligible, the Department seeks the full amount paid and the recovery exceptions do not apply.²

Exemptions and protected assets

Under SDCL 28-6-23.1, a surviving spouse may petition the Department within six months of the recipient's death; the Department values the spouse's estate as of the recipient's date of death, and that value limits the amount available for recovery.⁴

ARSD 67:48:02:08 requires the petition on the Department's form, signed by the surviving spouse or the spouse's authorized representative or legal guardian, and values real property at 100 percent of the county's tax valuation.²

Under ARSD 67:48:02:07, a surviving spouse dissatisfied with that determination may request a fair hearing.²

How the state files its claim

The nursing facility or other facility completes the DSS Estate Recovery Program Notification of Death and returns it to the Department within 15 days of the date of death. It is not a family filing.⁵

The notification asks whether there is a surviving spouse, minor children, or disabled children, whether there is a will and who the executor is, and reconciles the resident's personal trust account against burial costs.⁵

SDCL 29A-3-817 entitles the Department to receive a decedent's personal property by presenting an affidavit under SDCL 29A-3-1201 and a statement that the Department has incurred an indebtedness.^{6, 7}

Long-term care partnership policies

If the recipient had a Division of Insurance-approved long-term care partnership policy that paid for services, ARSD 67:48:02:05 reduces the estate recovery by the assets disregarded when Medicaid eligibility was determined, less any disregarded assets disposed of before death.²

The reduction may not exceed the amount the policy paid.²

Governing law: SDCL 28-6-23, 28-6-23.1; SDCL 29A-3-1201, 29A-3-817; ARSD 67:48:02

Facility's Estate Recovery Program Notification of Death to the Department

within 15 days of the date of death⁵

Surviving spouse's petition to limit financial responsibility

six months after the date of death of the medical assistance recipient⁴

Clerk of Court

Receives the Department's creditor claim when the estate is in probate³

1. 1.SDCL 28-6-23
2. 2.ARSD 67:48:02, Liens and Estate Recoveries
3. 3.Estate Recovery (South Dakota Department of Social Services)
4. 4.SDCL 28-6-23.1
5. 5.Estate Recovery Program Notification of Death
6. 6.SDCL 29A-3-817
7. 7.SDCL 29A-3-1201
8. 8.Petition to Limit Financial Responsibility of Surviving Spouse