March 19, 1992
John T. Hughes, Chairman
Meade County Mental Health Board
P.O. Box 729
Sturgis, SD 57785
OFFICIAL OPINION NO. 92-02
Expenses of an emergency commitment hearing when the patient is not a resident of the state of South Dakota
Dear Mr. Hughes:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
A patient was picked up by Meade County police officers and pursuant to an examination by a physician, determined to be a danger to himself. The patient was transferred to the South Dakota Human Services Center in Yankton, South Dakota. The Meade County Mental Health Board has determined the patient is a resident of Wisconsin. SDCL 27A-10-8 provides that when there is an emergency commitment hearing involving a nonresident, the state of South Dakota shall pay the expenses associated with the hearing.
Based upon the above facts, you have asked the following question:
QUESTION:
Who is responsible for paying the expenses of an emergency commitment hearing when the statute provides the state of South Dakota shall pay if the patient is a nonresident?
SDCL 27A-10-8 provides:
Within five days after the person is taken into custody, or six, if there is a Saturday, Sunday or holiday within that time period, he shall be provided an involuntary commitment hearing.
Expenses, including the transportation of the person to the hearing, incurred by the board holding the hearing shall be paid by the referring county, subject to reimbursement by the county ultimately proven to be the county of residence or if a nonresident of the state, by the state of South Dakota. However, the provisions of chapter 28-14 do not apply. (Emphasis added.)
Pursuant to SDCL 27A-10-8, it is clear that the county of residence is responsible for the costs in an emergency commitment hearing when the patient is a resident of the state of South Dakota. When the patient is a nonresident, SDCL 27A-10-8 provides that the State of South Dakota is responsible for the costs associated with the emergency commitment hearing. Confusion over which agency is responsible for the expenses associated with a nonresident emergency commitment hearing has arisen as a result of the statutory language designating the State of South Dakota as responsible.
In determining which agency is responsible for the costs associated with a nonresident commitment hearing, SDCL 27A-3-1 is informative. It provides:
The department of human services shall consider, determine, and establish policy and exercise such coordination for programs for mental health care and the treatment of mental illness; develop, maintain and operate programs for mental health services and the treatment of mental illness, and coordinate the work of the state departments involved in such programs. It shall also assist mental health centers within the state of South Dakota in programs of consultation, care and training and to carry out the duties imposed in this title, or as otherwise authorized and assigned to the department by law. (Emphasis added.)
Based upon the language contained in SDCL 27A-3-1, it appears the Legislature intended that whenever the language "state of South Dakota" appears in SDCL Title 27A, it is referring to the Department of Human Services.
This determination is bolstered by the language of SDCL 27A-4-15, which specifically provides that the expense of transferring a nonresident patient to his home state shall be paid out of the general funds of the State, rather than by the State of South Dakota. Had the Legislature envisioned that the expenses referred to in SDCL 27A-10-8 be paid by an agency other than the Department of Human Services, or out of the State's general funds, it would have so designated, such as it did under SDCL 27A-4-15.
Based upon the above, it is clear that the expenses incurred in an emergency commitment hearing involving a nonresident of South Dakota must be paid by the Department of Human Services.
Respectfully submitted,
MARK BARNETT
ATTORNEY GENERAL
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