October 9, 1981

Mr. Michael T. Hogan 
State's Attorney 
Edmunds County 
Ipswich, South Dakota 57451 

Mr. Timothy T. Weber 
State's Attorney 
McPherson County 
Leola, South Dakota 57456

Official Opinion No. 81-37

County Payments for Nursing Home Residents

Gentlemen:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

Two persons, residents of McPherson County, moved into a nursing home in Edmunds County.  Neither person has met any of the residency requirements set forth in SDCL 28-13 since moving to the nursing home in Edmunds County. 

Both of the nursing home residents receive Medicaid payments. The Medicaid payments are paid to residents of the state, regardless of the county of residence.  However, some of their pharmaceutical bills are not paid by Medicaid.  For payment of these bills, the nursing home residents rely on county poor relief.

Based on the above facts, you have asked the following question:

QUESTION: 

In light of the Medicaid residency requirements, is Edmunds county now  responsible for the care of the two nursing home residents, who are merely found to be within Edmunds County?

If medical bills are payable under Medicaid, the county of residence of the individual receiving the benefits is not important.  Residency in the state is important.  See 42 C.F.R. § § 435.400 et seq.  When medical bills are not payable under Medicaid, South Dakota law makes the counties responsible for poor relief.  Federal statutes and regulations are not applicable in such situations.  Therefore, the requirements of state law must be met before a person is eligible for county poor relief.

The provisions of SDCL 28-13, which deals with County Poor Relief, apply to this factual situation.  SDCL 28-13-3 states, in part: 

Except as otherwise provided in this chapter, any person, in order to be entitled to assistance, shall have an established residency in the state, and in the county where the application is made.

SDCL 28-13-14 states: 

An occupant or patient of any health care facility, licensed pursuant to the provisions of chapter 34-12, who has not otherwise established residency in accordance with  § 28-13-3 in the county where such facility is situated, shall not establish residency in such county solely by virtue of becoming and remaining an occupant or patient of such facility.

Nursing homes must be licensed under the provisions of SDCL 34-12.

Because state law expressly states that residency in a nursing home, which is not in the official county of residence of the nursing home resident, does not establish residency for the purposes of county poor relief payments, it is my opinion that the answer to your question is NO, Edmunds County is not responsible for the care of the two nursing home residents, who are merely found to be within Edmunds County.

Respectfully submitted,

Mark V. Meierhenry
Attorney General