May 9, 1975
Mr. David Vigen
Executive Director
Charities & Corrections
217 E. Dakota Avenue
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-83
Treatment of minor patients and payments required of patients at South Dakota Human Services Center
Dear Mr. Vigen:
Sections 28 and 29 of House Bill 573 enacted into law at the fiftieth legislative session and signed by the Governor as an emergency measure provide that the Board of Charities and Corrections shall make special provision for treatment of minor patients and authorize a juvenile mental health division at the Human Services Center. The Legislatue failed to fund adolescent treatement. You have asked if the Board of Charities and Corrections is required to implement sections 28 and 59.
SDCL 4-8-4 specifically provides:
When the Legislature passes any law directing any officer, board, or commission to do anything which might legitimately come under his or its jurisdiction and control which requires the expenditure of money and which Legislature fails to provide the necessary funds therefor by appropriation or otherwise, it shall not be competent for such officer, board, or commission to use any other funds under his or its control appropriated for a specific purpose by which such fund shall be depleted, nor shall any funds appropriated by the Legislature for a specific purpose be used for any purpose other than that for which it was appropriated.
It is clear from the foregoing that you are prohibited from continuing the adolescent treatment program currently operating at the center. Of course, you may implement any portion of House Bill 573 for which you have funds or which does not require funds.
You still must accept juvenile patients for mental health treatment and you should comply with section 28. You may expend funds for juvenile mental health care out of funds earmarked for general mental health care such as patient services, medical services, acute psychiatric services and extended psychiatric care. There is nothing which limits these categories to adults only. In fact, the proposed letter of intent from the joint appropriations committee indicates that they anticipate that juvenile mental health care will be provided in "the other available programs and facilities." Of course, section 59 is permissive, not mandatory. Therefore, it is my opinion that while you are prohibited from continuing a distinct adolescent treatment facility at the Human Services Center, you should be otherwise prepared to implement House Bill 573 including section 28.
Section 34 of House Bill 573 provides for a minimum payment by a patient admitted on a voluntary basis. You have asked whether the committing agency is responsible for the minimum payment.
Section 34 provides:
Every person that is admitted to the center on a voluntary basis shall, prior to his admittance, tender to the administrator of the facility the minimum amount charged against the counties in § 27-9-9. If this sum is not tendered, the person must have an authorization to be admitted and a pledge to pay the minimum amount by the county commissioners of his county of legal settlement or a pledge from any other responsible governmental entity.
Continued voluntary treatment without commission or governmental approval shall be contingent upon an advance monthly payment according to ability to pay but in no instance shall it be less than the minimum amount.
It is significant that section 34 deals with voluntary commitments. A patient who is committed by a court or another agency is not voluntarily admitted and no minimum payment, under section 34, is required. If the court order gives the person an option for voluntary commitment in lieu of some punishment, then, of course, it is up to the patient to make arrangments for the minimum payment as part of the voluntary admission pursuant to section 34. Therefore" it is my opinion that a commitment by a court or an agency is not subject to the minimum payment required by section 34, and the Human Services Center would be required to accept the patient without the minimum payment assuming that the committing court or agency has the power to order the commitment. However, the patient is still liable for his care, support, maintenance and treatment under an involuntary commitment as you will see from the discussion which follows.
You have also asked whether a voluntary application under SDCL 34-20A-50 for alcoholism treatment at the Human Services Center must be accompanied by payment of the minimum charge provided by section 34 of House Bill 573. SDCL 34-20A contains no provision for payment for care and treatment.
The plain language of section 34 provides that the minimum payment is required of every person admitted on a voluntary basis to the Human Services Center. Although this section is contained in the mental illness legislation, its language does not limit its application to this subject. The language employed in section 34 indicates an intent to include all voluntary admissions for all purposes.
In addition to this indication of intent, statutes which are in pari materia should be construed together as one system with one policy. House Bill 573 and SDCL 34-20A are in pari materia because both concern voluntary treatment of patients at the Human Services Center. Therefore they should be construed as one system, Sutherland, Statutory Construction, § 51.02, even though the statutes were enacted at different times and are found in different chapters of the code. 82 C.J.S. 807.
A provision in one statute as to which a second statute is silent will be applied to the second statute if the two are in pari materia. 82 C.J.S. 813. Therefore, the charges in section 34 should be applied to alcohol admissions. Futhermore, in case of a conflict between statutes in pari materia, the statute most recently enacted controls.
Therefore, because of the language used in section 34, and because the statutes are in pari materia, the payment of charges required by section 34 applies to all voluntary admissions to the center, including admissions for the treatment of alcoholism.
Your next question is who is responsible for the cost of the patient's care under an involuntary commitment.
The most common procedures for involuntary commitment are found in House Bill 573. Sections 82-99 provide for involuntary commitments and sections 107-115 provide for emergency commitments. Any person committed under these procedures is primarily liable for the costs of his care, support, maintenance and treatment pursuant to section 118 of House Bill 573. His legally responsible relatives are also primarily responsible. Secondary liability lies with his county under section 122.
You have alluded to other forms of involuntary commitment. Under SDCL 23-60-28 the Board of Pardons and Paroles may send an inmate to Yankton for psychiatric examination and evaluation. Section 118 of House Bill 573 is clear:
When any person is admitted to a state facility, the resident and his legally responsible relatives shall be liable for the cost of the care, support, maintenance, and treatment of such persons to the extent and in the manner provided by this title. If the resident is not a proper charge of any county but is a charge of the federal government, the costs shall be assessed against the appropriate agency of the federal government.
The penitentiary inmate is personally responsible for the costs of his psychiatric examination and evalution.
A court may order a person found mentally ill under SDCL 23-38 to be committed to the Human Services Center until he becomes sane. Under both section 118 and SDCL 23-38-8 the person who is committed is primarily liable for the cost of his care, support, maintenance and treatment.
In the past, courts have ordered persons convicted of crimes to be incarcerated in the Human Services Center instead of the penitentiary or a jail. Clearly, a court may impose imprisonment as a punishment. SDCL 22-1-3(2). A person may be imprisoned in a county jail, SDCL 22-6-2 and
23-48-20, the State Penitentiary, SDCL 22-1-4, 23-48-35 to -41 and 24-1-1, the State Reformatory, SDCL 23-48-21, or the State Training School, SDCL 26-11-5. However, I find no authority for imprisonment in the Human Services Center.
A person may only be involuntarily committed as authorized by law. See SDCL 27-1-6 as amended by section 43 of House Bill 573; SDCL 27-4-10 as amended by section 55 of House Bill 573; and 27-7-1 as amended by section 94 of House Bill 573.
Therefore, it is my opinion that the administrator of the Human Services Center would be justified in refusing to obey an order that a person convicted of a crime be incarcerated in the Human Services Center. This would not affect a court's power to permit a person convicted of a crime to voluntarily commit himself to the Human Services Center in lieu of imposition of some other sentence by the court.
It appears that the Legislature intended to have all patients pay for their care, support, maintenance and treatment. The method of commitment is irrelevant. Indigent patients who must be supported by their counties are the only exception. The committing agency is not liable for the costs of care, support, maintenance or treatment unless specifically provided by law.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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