The department may waive the period of ineligibility specified in §§ 67:46:05:09 and 67:46:05:15 if:

1. (1) The individual or someone acting on the individual's behalf provides clear and convincing evidence that the individual has no other means of support and denial of nursing facility or home and community based waiver services assistance would deprive the individual of food, clothing, shelter, or other necessities of life or medical care, the absence of which would endanger the individual's health or life; and
2. (2) The individual or someone acting on the individual's behalf must either demand the return of the asset that was transferred or receive the fair market value for the asset; and

3. (3) If the asset is not returned upon demand or fair market value is not received, the individual or someone acting on the individual's behalf must either:

   1. (a) Retain an attorney who must initiate a civil action for the recovery of the asset or its fair market value; or

   2. (b) If the transfer was the result of a crime of theft or exploitation, the individual or someone acting on the individual's behalf must report the incident to a local law enforcement agency.

      The home and community based waiver provider or the nursing facility in which the individual is residing may file a waiver application on behalf of the individual if the waiver application is done with the consent of the individual or the individual's personal representative.

      An individual may appeal a denial of a waiver request under the provisions of chapter 67:17:02. The burden of proof is with the individual and there must be clear and convincing evidence that justifies the waiver.

      Cross-References:

      Disposal of resources for purposes of establishing eligibility, § 67:46:05:06.

      Notice of right to request waiver of period of ineligibility -- Right to request waiver -- Assets transferred at less than fair market value, § 67:46:08:05.

      Availability of hardship waivers, 42 U.S.C. § 1396p(c)(2)(D).

      Facility may file for waiver on behalf of institutionalized individual, 42 U.S.C. § 1396p(c)(2)(D).

Source: 16 SDR 10, effective July 23, 1989; 16 SDR 203, effective May 27, 1990; 17 SDR 187, effective June 3, 1991; transferred from § 67:16:20:02.05, effective August 23, 1992; 33 SDR 44, effective August 31, 2006; 35 SDR 166, effective December 24, 2008; 41 SDR 93, effective December 3, 2014.

General Authority: SDCL 28-6-1 , 28-6-3.1.

Law Implemented: SDCL 28-6-3.1 , Pub. L. No. 100-360 (102 Stat. 761).

Prior versions effective: 2008-12-24.