January 10, 1980

Dr. Verle Rogers 
Superintendent 
Redfield State Hospital 
Redfield, South Dakota 57469

Official Opinion No. 80-1

Financial Responsibility of Relatives

Dear Dr. Rogers:

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

FACTS: 

Hutchinson County had filed a lien against the property of certain individuals in that county in August of 1961.  This lien is for money that the county has contributed to the costs of caring for the son of the individuals against whom the lien has been filed. The son of these individuals, who is an adult, has been a resident of the Redfield State Hospital and School in Redfield, South Dakota.

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

QUESTIONS: 

1.  Can a relative of an adult Redfield State Hospital and School resident be billed for the money contributed by the county of residence? 

2.  What is the effect of the repeal of SDCL 27B-9-28?  Are the liens that were discharged by the passage of SDCL 27B-9-28 now reinstated? 

3.  May a county require reimbursement from the relatives of a Redfield State Hospital resident for the $60 a month that the county is required to pay under SDCL 27B-9-16?

IN RE QUESTION NO. 1:

If you are asking whether a relative of such a resident may have a lien attached to their property or have a judgment entered against them by the county, the answer appears to be no.

SDCL 27B-9-1 reads as follows: 

Notwithstanding chapter 25-7, when any person is admitted to a facility only the resident shall be liable for the cost of his care, support, maintenance and treatment to the extent and in the manner provided by this chapter.  If the cost of the resident's care, support, maintenance and treatment is a proper charge of the federal government, the cost shall be assessed against the appropriate agency of the federal government.

The 1978 amendment to this section, among other things, substituted the words 'only the resident shall be liable' for the words 'the resident and his legally responsible relatives shall be liable' in the first sentence of this section.  SDCL 27B-9-11 states: 

If a patient refuses or fails to make such payments, charges may be collected by a civil suit brought in the name of the state of South Dakota. The state may sue such patient for payments due, and any judgment obtained shall be a lien upon the real property of such patient, and shall be collected as other judgments.  Any claim arising under § 27B-9-1 has the same force and effect against the real and personal property of a deceased  person as other debts of a decedent, and shall be ascertained and recovered in the same manner.

The intent of the statutes read together is clear:  parents of a resident at the Redfield State Hospital and School are not to be held financially responsible for the costs of caring for that resident.  The 1978 amendments to SDCL 27B-9 reflect that intent.

IN RE QUESTION NO. 2:

The answer to this question is no.  The prior liens are not reinstated.  Under SDCL 2-14-19, 'Whenever any act of the Legislature is repealed, which repealed a former act, such former act shall not thereby be revived unless it shall be expressly so provided.'  It appears that the provisions of SDCL 27B-9-28, which in effect repeal former sections of the Code at least to the extent that they allowed certain liens or claims, were not reinstated by the repeal of such section 27B-9-28, there being no express provision in the repealer providing that such repeal would in fact reinstate such prior claims or liens.

IN RE QUESTION NO. 3:

As to the liability of the relatives of a resident, the answer to this question would be no.  The amendments of SDCL 27B-9 as referred to in question 1 above would apply equally as to the liability of relatives of a Redfield State Hospital resident for the charges provided for under SDCL 27B-9-16.

Respectfully submitted,

Mark V. Meierhenry
Attorney General