January 25, 1985

Mr. Dennis J. Batteen 
Faulk County State's Attorney 
Post Office Box 237 
Faulkton, South Dakota 57438

OFFICIAL OPINION NO. 85-04

Out-of-state medical expense of indigents

Dear Mr. Batteen:

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

FACTS: 

An indigent resident of your county has been diagnosed by a local physician as suffering from a medical illness for which the only known treatment is a procedure not available in South Dakota. A medical facility outside of the State has found the patient to be suitable for the procedure required to treat the illness.  That facility has required, prior to commencing the procedure, that it have either a down payment or a guarantee of a specific (very substantial) sum of money and has advised that the total cost will probably be much more. 

This is conceded to be a 'nonemergency case.'

Based on the above factual situation you have asked the following question:

QUESTION: 

Is the county authorized to guarantee payment of the sum required by the out-of-state facility prior to commencing the procedure?

SDCL 28-13-32.1 provides as follows: 

In order for a person to be entitled to poor relief assistance in nonemergency cases, as defined in §  28-13-27, he must make or there must be made, on his behalf, an application to the board of county commissioners.  The application must be made prior to the time the care is provided or as soon thereafter as the person providing the care becomes aware that the patient may be eligible for poor relief assistance under this chapter.  The board of county commissioners may approve, reject or modify any application for poor relief.

SDCL 28-13-32.2 provides: 

The application required in §  28-13-32.1 shall include, but is not limited to, the following: 

(1)  Nature and degree of severity of the illness; 

(2)  Anticipated diagnostic or therapeutic services required, the location the services are to be provided, and estimated cost of services based on the information available at the time of the application.

Official Opinion No. 84-10, dated February 7, 1984, stated: 

In answer to question No. 1, Hutchinson County is not obligated to reimburse an out-of-state hospital or clinic for care and treatment of an indigent resident under SDCL Ch. 28-13, county poor relief statutes.

The opinions expressed in answer to questions in Official Opinion 84-10 are limited to the fact situation set forth in that opinion.  That opinion is not in any way intended to restrict the authority granted by the Legislature to a board of county commissioners, by SDCL 28-12-32.1, to 'approve, reject, or modify any application for poor relief.'

Assuming that the requirements of SDCL 28-13-32.1 and 28-13.32.2 are met, the answer to your question is 'yes.'

Respectfully submitted,

Mark V. Meierhenry
Attorney General