The department shall consider an individual incapable of indicating intent if the individual meets one of the following:

1. (1) The individual has been judged legally incompetent by a court;
2. (2) A physician, psychologist, or a qualified developmental disability professional has found the individual to be incapable of indicating intent and has based this finding on medical evidence; or

3. (3) A psychologist has determined that the individual has an IQ of 49 or less or a mental age of 7 or less and has based this determination on tests appropriate for the individual being tested.

   Cross-References: State residence -- Individual considered incapable of indicating intent, 42 C.F.R. § 435.403(c) (July 12, 2006).

Source: 10 SDR 39, effective November 1, 1983; transferred from § 67:16:18:04.03, effective August 23, 1992; 40 SDR 122, effective January 8, 2014; transferred from § 67:46:03:07, 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.