July 12, 1976

Miss Judith K. Call, Secretary
Department of Health
Foss Building
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 76-68

Certificate of Need for the James Valley Nursing Home

Dear Miss Call:

You have requested an official opinion from this office based upon the following factual situation:

Mr. Del Brown, Co-administrator of the James Valley Nursing Home in Redfield, South Dakota has made inquiry as to possible requirements for a Certificate of Need for the James Valley Nurs­ing Home. It is noted that this nursing home wants to increase bed capacity by one bed and Mr. Brown states that "this will not re­quire any building construction or expense of any kind." The James Valley Nursing Home has forty-three double rooms and one private room. When first opened, a resident of the home was al­lowed to use a double room as a private room so the home re­quested only licensure for eighty-six beds. Now, the nursing home has eighty-seven skilled beds and wants to use the double room as a double room.

Based upon the above facts you ask:

Would a Certificate of Need be required under SDCL 34-7A by the James Valley Nursing and Convalescent Home to increase the bed capacity of this health care facility by one bed if this project will not require any building construction or expense of any kind?

As discussed in Official Opinion Number 76-67 relating to the Certificate of Need Law, it is my opinion that there is no "construction or modification" requiring a Certificate of Need, when there is no erection, building, altera­tion, reconstruction, modernization, improvement, or extension of the facility, or purchase or acquisition of diagnostic or therapeutic equipment.

In the facts presented here, it appears there has been no such physical plant construction or purchase of equipment which would meet the definition of "construction or modification" in SDCL 34-7A-2 and 34-7A-16.

Accordingly, the answer to your question is NO.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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