February 16, 1978
Mr. Clyde Saukerson
Deputy State's Attorney
Davison County Courthouse
Mitchell, South Dakota 57301
Official Opinion No. 78-8
Poor relief procedures
Dear Mr. Saukerson:
You have requested an opinion from this office based upon the following factual situation:
FACTS:
Our county commissioners have raised a number of questions concerning payment of hospital bills submitted by two hospitals in Mitchell for allegedly indigent patients. We have had meetings with representatives of both hospitals in attempting to satisfactorily resolve the differences.
Based on the above facts, you ask the following questions relative to Chapter 28-13:
QUESTIONS:
1. How is indigency defined under Chapter 28-13 to determine whether or not the county is responsible for paying hospital bills submitted to them?
2. What responsibility, if any, does the hospital have prior to or at the time of submitting a bill to indicate to the commissioners that the person is, in fact, indigent?
3. What efforts must the county make, if any, if the alleged indigent person fails to request county aid or appear before the commissions to discuss their indigency status?
4. Assuming that a person is indigent, to what extent of the bill submitted by the hospital is the county liable?
IN RE QUESTION NO. 1:
In response to your first question, the term “indigent person” is defined by SDCL 28-13-27(2) as being any person entitled to poor relief under the provisions of Chapter 28-13. Under Chapter 28-13, it is essentially a determination for the respective boards of county commissioners as to whether or not an applicant is entitled to poor relief. This standard does not help much, however, in defining the term “indigency.”
Case law has recognized that “indigency” in the context of the criminal law has a different meaning than “indigency” for purposes of receiving welfare services. State v. Jensen, 241 N.W.2d 557, 560. Although there are no South Dakota cases reported on point in this area, other states have considered what an “indigent person” is for purposes of poor relief eligibility.
In the case of St. Patrick's Hospital v. Powell County, 447 P.2d 340, 343 (1970), the Montana Supreme Court held that an “indigent person” under welfare statutes was a person who did not have present or future hope of resources sufficient to pay for medical and hospital services required in emergency instances, even if there is not a total lack of resources. Similar conclusions are also reached in the cases of Parkview Memorial Hospital v. County Department of Public Welfare of Dekalb County, 191 N.E.2d 116, 119. Other cases have also recognized that an 'indigent person' is a person who does not have sufficient means to pay for his maintenance, after providing for those persons who legally claim his support, Goodall v. Bright, 54 P.2d 510, 515, Depue v. District of Columbia, 45 App. D.C. 54, 59.
These considerations may be of some assistance in reviewing the facts of particular cases which arise in your area. The point to be noted, however, is that determination of indigency under Chapter 28-13 is a factual matter for the respective board of county commissioners to make. Precise criteria are not laid out in the South Dakota law to give ready assistance to the commissioners in this determination.
IN RE QUESTION NO. 2.
In response to your second question, I do not believe that the law gives any authority to make a determination of any indigency status. As discussed in regard to your first question, this is a matter for the county commissioners to decide, 1951-52 AGR 346, 361, 1955-56 AGR 408, Roane v. Hutchinson County, 167 N.W. 168.
IN RE QUESTION NO. 3:
An answer to your third question is more difficult, due in large part to the lack of procedural guidelines in Chapter 28-13. The following analysis illustrates the problem from my point of view.
In 1953, the Legislature passed Senate Bill No. 61 (Chapter 131 of the 1953 Session Laws), which is now found at § § 28-13-27 to -36, inclusive. That legislation was limited by its title to relating to hospitalization of indigent persons in emergency cases. By definition, therefore, this legislation did not cover nonemergency hospitalization procedures or standards for indigent persons. This distinction has been recognized by my predecessor at 1955-56 AGR 408.
The procedures for handling nonemergency hospitalization of indigent persons under Chapter 28-13 are not very clear. SDCL 28-13-1 provides that counties shall relieve and support all indigent persons who have established residency therein when they stand in need. In the case of Jerauld County v. Indemnity Company, 76 S.D. 1, 71 N.W.2d 571 (1955), South Dakota's Supreme Court said that the county had no choice as to the means by which the hospitalization is to be provided. Further, SDCL 28-13-40 indicates that application for assistance be made to the county commissioners by the indigent person, rather than merely relying on getting the medical services from anyone who will give it to them and then have the provider bill the county for what services have been given.
It is difficult for me to see how a county can be in control of choosing the means of providing these hospitalization services if there is no requirement that persons seeking such nonemergency medical assistance be authorized by the county to receive such assistance at county expense before the assistance is given.
If this were not the case, an individual could go to the hospital to get medical assistance and then have the hospital bill the county without ever giving the county the chance to exercise its authority to choose the means by which the medical treatment is to be given.
I fully recognize that the implementation of these poor relief laws has not been easy or uniform the state in the past. Much of this is due, in my view, to the lack of specificity in Chapter 28-13, which creates too many murky grey procedural areas to wonder about. I would support clarifying legislation in this area and would be willing to help anyone interested in promoting legislation to deal with these problems.
In regard to the specifics of your third question, it appears to be that nonemergency aid recipients would at least need to give the county notice before they seek medical aid for which they claim county poor relief assistance. The county may not have any discretion in accepting their duties under § 28-13-1, but they do have discretion over the means of providing such care and, in my opinion, cannot be expected to have a chance to exercise this discretion unless they are notified prior to nonemergency medical aid being given. Emergency aid procedures are fairly well described in § § 28- 13-27 to -36, inclusive.
As far as your question about failure to appear before the commission to discuss indigency is concerned, I believe that the county commission must make a good faith effort to determine indigency even if the applicant does not show up. What would constitute a good faith effort is hard to be terribly specific about, since much would depend on the facts of each individual case. I believe, however, that it at minimum would mean that the county would make every effort to determine the indigency status question on its own, even if the applicant did not appear before the commission. It is, after all, a responsibility of the commission to determine indigency. See Mercy Medical Center of Oshkosh, Inc. v. Winnebago County, 206 N.W.2d 198 (1973). Further, it is the obligation of county commissioners to act on applications; delays in making decisions can only further confuse the problem.
IN RE QUESTION NO. 4:
My response to your fourth question is, in large part, built upon the discussion of the issues raised under your question No. 3. Insofar as emergency care is concerned, the rates set by § 28-13-28 would seem to be controlling. These rates are not set on a per diem basis, but are rates set for various services provided. If the county believes the rates to be excessive, there are procedural steps under § 28-13-32 by which the county can challenge the rates. Further, if the county believes the rate to be excessively expensive, there is a procedure under § § 28-13-35 and -36 whereby the county can negotiate for services to be rendered by somebody else.
As far as nonemergency care is concerned, there is little guidance to be found in Chapter 28-13. Agreements between the county and the providers would be the first area to consider and if such agreements do exist, I would expect the rates there established would be controlling. In the absence of any specifically agreed rates, I would think that the rates set for emergency purposes would likely be used. Every effort should be made, however, to have contractual agreements on rates in this area before medical care is given. Flexibility exists under the emergency care provisions of the law so as to enable persons in emergency need to get needed care without undue delays and approvals. There does not appear to me to be any real reason that these nonemergency rates cannot be agreed to by the parties before the care is given and before conflicts arise.
Respectfully submitted,
William J. Janklow
Attorney General
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