South Dakota Medicaid Estate Recovery

Recovery is generally blocked or delayed for: No recovery from the recipient's estate while the recipient's spouse is still living (ARSD 67:48:02:05). South Dakota can still claim against the surviving spouse's estate after that spouse dies (SDCL 28-6-23); No recovery from the recipient's estate while the recipient has a surviving child under age 21 (ARSD 67:48:02:05); No recovery from the recipient's estate while the recipient has a surviving child of any age who is blind or disabled (ARSD 67:48:02:05); A surviving spouse may petition the department within six months of the recipient's death to cap the claim against the spouse's estate at the value of that estate on the date the recipient died (SDCL 28-6-23.1, ARSD 67:48:02:08). The petition is filed on the department's form, and a spouse who disagrees with the result may request a fair hearing (ARSD 67:48:02:07); During the recipient's lifetime the department may not place a lien on the home if the recipient is reasonably expected to return home, or while any of these people lawfully live there: the spouse; a child under 21 or a blind or disabled child; an adult child who lived there for at least two years before the recipient's admission and provided care that kept the recipient at home; or a sibling who has an equity interest in the home and lived there for at least one year before admission (ARSD 67:48:02:04); Where a lien is on the home, federal law bars recovery from the home while a sibling who lived there for at least one year before the recipient's admission, or a son or daughter who lived there for at least two years before admission and provided care that kept the recipient out of an institution, has lived there continuously since the admission (42 U.S.C. 1396p(b)(2)(B)); These protections do not apply if the department finds the recipient owned property or other assets that would have made the recipient ineligible for Medicaid. The department then seeks to recover the full amount paid (ARSD 67:48:02:06).

After a Medicaid recipient dies, the South Dakota Department of Social Services recovers the medical assistance it paid. SDCL 28-6-23 makes two kinds of payment a debt due to the department: any medical assistance paid while the person was an inpatient in a nursing facility, an intermediate care facility for individuals with developmental disabilities or another medical institution, at any age; and, for a person 55 or older, payments for nursing facility services, home and community based services, intermediate care facility services, and hospital and prescription drug services. The department's rule, ARSD 67:48:02:05, says it shall seek to recover those benefits from the recipient's estate, reduced by any assets disregarded because the recipient held a South Dakota long-term care partnership insurance policy. The department may also file a claim against the estate of the recipient's surviving spouse (SDCL 28-6-23). In a probate case the department files a claim as a creditor. Outside probate, SDCL 29A-3-817 lets it collect the decedent's personal property by the small-estate affidavit, and anyone holding that property who knows of the debt may pay out nothing but funeral expenses until the department is paid or issues a satisfaction. The family's own small-estate affidavits are closed while this debt exists: both SDCL 29A-3-1201 (personal property) and 29A-3-1203 (real property) require the successor to state that the decedent incurred no indebtedness to the department for nursing home or other medical institutional care. During the recipient's lifetime the department may also record a medical assistance lien against real property of an institutionalized recipient with the county register of deeds; the lien lasts twenty years from recording unless released or foreclosed (SDCL 28-6-24, 28-6-25).

Yes. South Dakota offers an undue-hardship waiver. Contact South Dakota Department of Social Services, Office of Recoveries and Fraud Investigations at (605) 773-3653 to request the waiver and ask about deadlines.

South Dakota Department of Social Services, Office of Recoveries and Fraud Investigations, phone (605) 773-3653, https://dss.sd.gov/keyresources/benefitfraud/estate.aspx.