Except for payments from the trust to the beneficiary or for the benefit of the beneficiary, § 67:46:05:32.02 does not apply to any of the following trusts:

1. (1) A Medicaid income trust created under the provisions of § 67:46:05:33.01;
2. (2) An irrevocable trust that contains the assets of an individual who is disabled and under age 65 if the trust is established for the sole benefit of the individual and provides that upon the death of the individual and before any other distribution is made from the trust, the department shall receive all amounts remaining in the trust up to an amount equal to the total medical assistance paid on behalf of the individual; and

3. (3) An irrevocable trust that contains the assets of an individual who is disabled and which meets the following conditions:

   1. (a) The trust is established and managed by a nonprofit association;
   2. (b) The association maintains the individual's assets in a separate account but may pool the individual's account with others for purposes of investments and the management of funds;
   3. (c) The accounts in the pool are established solely for the benefit of individuals who are disabled and by the individual, the individual's parent, grandparent, legal guardian, or by the court;
   4. (d) The trust provides that upon the death of the individual or termination of the trust during the individual's lifetime, whichever is sooner, the department shall receive any amounts remaining in the individual's trust subaccount up to an amount equal to the total medical assistance paid on behalf of the beneficiary. The association may retain reasonable administrative fees and expenses, not to exceed the annual amount normally charged by the association for that trust subaccount; and
   5. (e) Funds of an individual age 65 or older that are transferred to this trust are subject to the transfer penalty provisions contained in chapter 67:46:05.

Source: 21 SDR 162, effective March 23, 1995; 36 SDR 215, effective July 1, 2010; 46 SDR 50, effective October 10, 2019.

General Authority: SDCL 28-6-1.

Law Implemented: SDCL 28-6-1.

Prior versions effective: 2010-07-01.