STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 5, 1968

Lyle Osberg
Department of Health
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 68-45

Authority of Department of Charities and Corrections to submit to the licensing requirements of the South Dakota Department of Health

Dear Mr. Osberg:

You have presented us with the following situation:

"The Department of Charities and Corrections is desirous of converting a portion of the Custer State Hospital into a "nursing home" and placing therein patients from the Redfield State Hospital. In order to obtain Federal Medicare funds, it is necessary that this must be fully licensed by the State of South Dakota for use as a nursing home.

"SDC 27.1202 provides that the provisions of the nursing home licensing law shall not apply to any state institution, children's home, association or institution having the care of children under its control, which is duly incorporated under the laws of this state."

You have asked the following question:

"Is the above provision mandatory or permissive, that is, does it absolutely prohibit a state institution from being licensed as a nursing home by the Health Department, or may such state department submit voluntarily to the licensing laws?"

While there is no absolute test by which it may be determined whether a statute is mandatory or directory, the primary rule is to ascertain the legislative intent as revealed by an examination of the whole Act. 82 CJS, Statutes Sec. 376. In this case, we must not only look at the Nursing Home Licensing Act, but also at the Act creating the Custer State Hospital.

Chapter 318 of the Session Laws of 1963 transferred the facilities of the old State Sanitarium to the Redfield State Hospital and School "for use as a hospital for the mentally retarded." At the same time the name of the Sanitarium was changed to Custer State Hospital.

It is my opinion that while the Board of Charities and Corrections may transfer some of their older patients to the hospital, it cannot change such facility to a custodial "nursing home" without legislative sanction.

In order to change the use of the Hospital, which is clearly spelled out in the 1963 Session Law, the Board should obtain legislative permission therefore. As part of this permission, it should also have the Legislature spell out whether it needs a permit of any kind from the Board of Health.

Respectfully submitted,

Frank L. Farrar
Attorney General