STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 25, 1978

Robert H. Hayes, M.D.
Secretary of Health
South Dakota Department of Health
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 74-32

Certificate of need required for supervised living care facility to be constructed by Platte Nursing Home

Dear Dr. Hayes:

You have requested the opinion of this office based upon the following situation:

Platte Nursing Home is anticipating the construction of a facility which will be classified as a Supervised Living Care Facility. Question exists if this facility will require a Certificate of Need, pursuant to SDCL Chapter 34-7 A.

A "health care facility" is defined in 34-7 A-2 as "any hospital or nursing home licensed as such under Chapter 34-12 or any other licensed outpatient care facility, extended care facilities or home care facilities."

One question to be resolved is if a Supervised Living Care Facility is a health care facility under 34-7A. Chapter 34-12-1 describes the institutions subject to regulations and states that "Homes for the aged and related institutions within the meaning of this chapter shall mean any institutions, rest homes, boarding home, place, building, or agency which furnishes services which meet some need beyond basic provisions of food, shelter, and laundry to three or more persons not related by blood or marriage to the proprietor."

An important relationship between these two laws in terms of the Certificate of Need is involved with the provision of nursing home care. The Health Facilities Program of the State Department of Health which administers the licensing program under Chapter 34-12 has categorized the Supervised Living Care Facility as a "Home for the Aged."

You present the following question:

Is a Certificate of Need required prior to the construction of a Supervised Living Care Facility?

Our answer is, YES, a Certificate of Need for Health Care Facility is required prior to the construction of a Supervised Living Care Facility by the Platte Nursing Home.

You have stated in your factual situation, above, that the Health Facilities Program of the State Department of Health which administers the licensing program under Chapter 34-12 has categorized the Supervised Living Care Facility as a "Home for the Aged."

SDCL 34-7A-2(1) defines a “health care facility” as follows:

"Health care facility," any hosptial or nursing home licensed as such under Chapter 34-12 or any other licensed outpatient care facility, extended care facilities or home care facilities. (my emphasis)

We find the terms "home care for the aged" and "home care facilities" to be synonymous.

It is my opinion that a Certificate of Need is required pursuant to SDCL 34-7 A-16 which provides:

No construction or modification of a health care facility, whether public, nonprofit or proprietary shall be commenced unless a certificate of need has been issued therefor in accordance with this chapter.

Respectfully submitted,

Kermit A. Sande
Attorney General

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