State of South Dakota
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EIGHTY-EIGHTH SESSION
LEGISLATIVE ASSEMBLY, 2013
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400U0394
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SENATE BILL NO. 26
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Introduced by: The Committee on Health and Human Services at the request of the
Department of Human Services
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FOR AN ACT ENTITLED, An Act to update terminology for individuals with intellectual
disabilities and similar terms.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 10-62-1 be amended to read as follows:
10-62-1. Terms used in this chapter mean:
(1) "Department," the Department of Revenue;
(2) "Intermediate care facility for the mentally retarded individuals with intellectual
disabilities," a treatment or care center as defined by 1905(d) of the Social Security
Act and Code of Federal Regulations 42 CFR 435.1009 as of January 1, 2007;
(3) "Net revenues," the revenue paid to an intermediate care facility for
the mentally
retarded individuals with intellectual disabilities for resident care, room, board, and
services less contractual adjustments and does not include revenue from sources
other than operations, including interest and guest meals.
Section 2. That § 10-62-2 be amended to read as follows:
10-62-2. There is hereby imposed a tax of five and one-half percent on the net revenues of
each intermediate care facility for the mentally retarded individuals with intellectual disabilities.
Section 3. That § 13-32-13 be amended to read as follows:
13-32-13. The provisions of §§ 13-32-10 to 13-32-12, inclusive, do not apply to any of the
following group living environments:
(1) A facility operated by the Department of Corrections;
(2) A facility operated by the Department of Human Services or the Department of
Social Services;
(3) A group care or residential treatment facility licensed by the Department of Social
Services;
(4) A residential treatment facility accredited by the Department of Human Services or
the Department of Social Services;
(5) A community support provider as defined in § 27B-1-17;
(6) An intermediate care facility for the mentally retarded individuals with intellectual
disabilities;
(7) A juvenile detention center or holding facility operated by a county; or
(8) A hospital or health care facility as defined in § 34-12-1.1.
Section 4. That subsection (2) of § 22-46-1 be amended to read as follows:
(2) "Disabled adult Adult with a disability," a person eighteen years of age or older who
suffers from a condition of mental retardation intellectual disability, infirmities of
aging as manifested by organic brain damage, advanced age, or other physical
dysfunctioning to the extent that the person is unable to protect himself or herself or
provide for his or her own care;
Section 5. That § 26-7A-85 be amended to read as follows:
26-7A-85. If it appears from the evidence presented at the adjudicatory hearing that the child
may be mentally ill or mentally retarded have an intellectual disability, as the terms are defined
in Title 27A or Title 27B, the court may suspend the adjudicatory hearing and may:
(1) Order that the child be examined by a qualified mental health professional. The court
may place the child in a hospital or other suitable facility for the purposes of the
examination; or
(2) Recommend to the state that the proceedings be conducted as provided in applicable
chapters of Title 27A or Title 27B.
Even if the court exercises some of the authority in this section, the court may proceed with
the adjudicatory hearing and dispositional hearing.
Section 6. That subsection (24) of § 27A-1-1 be amended to read as follows:
(24) "Severe mental illness," substantial organic or psychiatric disorder of thought, mood,
perception, orientation, or memory which significantly impairs judgment, behavior,
or ability to cope with the basic demands of life. Mental retardation Intellectual
disability, epilepsy, other developmental disability, alcohol or substance abuse, or
brief periods of intoxication, or criminal behavior do not, alone, constitute severe
mental illness;
Section 7. That § 27A-15-1.1 be amended to read as follows:
27A-15-1.1. For the purposes of this chapter, an individual with a serious emotional
disturbance is an individual who:
(1) Is under eighteen years of age;
(2) Exhibits behavior resulting in functional impairment which substantially interferes
with, or limits the individual's role or functioning in the community, school, family,
or peer group;
(3) Has a mental disorder diagnosed under the Diagnostic and Statistical Manual of
Mental Disorders, fourth edition revised, 1994;
(4) Has demonstrated a need for one or more special care services, in addition to mental
health; and
(5) Has problems with a demonstrated or expected longevity of at least one year or has
an impairment of short duration and high severity.
For purposes of this section, mental retardation intellectual disability, epilepsy, other
developmental disability, alcohol or substance abuse, brief period of intoxication, or criminal
or delinquent behavior do not, alone, constitute serious emotional disturbance.
Section 8. That subsection (14) of § 27B-1-17 be amended to read as follows:
(14) "Qualified mental retardation developmental disabilities professional," any person
with at least one year of experience working directly with mental retardation
individuals with intellectual disabilities or other developmental disabilities and is
either a doctor of medicine or osteopathy, a registered nurse, or a person who holds
at least a bachelor's degree in a professional category.
Section 9. That § 27B-7-30 be amended to read as follows:
27B-7-30. If requested, information shall be disclosed:
(1) Pursuant to orders or subpoenas of a court of record or subpoenas of the Legislature
or chair of the county review board;
(2) To a prosecuting or defense attorney or to a qualified mental retardation
developmental disabilities professional as necessary for participation in a proceeding
governed by this title;
(3) To an attorney representing a person who is presently subject to the authority of this
title or who has been discharged if that person has given consent;
(4) If necessary in order to comply with another provision of law;
(5) To the Department of Human Services if the information is necessary to enable the
Department of Human Services to discharge a responsibility placed upon it by law;
or
(6) To a state's attorney or the attorney general for the purpose of investigation of an
alleged criminal act either committed by or upon a person with a developmental
disability.
Section 10. That § 27B-7-38 be amended to read as follows:
27B-7-38. The county review board may issue a detention order and direct a law
enforcement officer from the referring county or the county of residence to immediately take the
person to a community service provider or facility recommended by the Department of Human
Services, with the approval of the provider, to be detained for purposes of an examination if the
county review board finds from the petition, from other statements under oath, or from reports
of physicians, psychiatrists, psychologists, or other qualified mental retardation developmental
disabilities professionals that there is reasonable basis to believe that the person to be committed
poses an immediate danger of physical injury to self or others.
If the county review board issues a detention order based on a petition that did not include
a recommendation for detention by a psychiatrist or psychologist, the person shall be examined
by a psychiatrist or psychologist within forty-eight hours of the issuance of the detention order,
excluding Saturdays, Sundays, and legal holidays. The results shall be reported to the county
review board. If the report is not received by the county review board within forty-eight hours,
excluding Saturdays, Sundays, and legal holidays, the person shall be released from placement
with the community service provider. The report shall include:
(1) Whether the person may be diagnosed as having a developmental disability;
(2) Whether supports and services are available and appropriate in lieu of county review
board proceedings; and
(3) Whether the person continues to pose an immediate danger of physical injury to self
or others due to the developmental disability.
Upon receipt of the report by the county review board, if it is determined that the person
continues to pose an immediate danger of physical injury to self or others due to the
developmental disability, placement with a community service provider shall continue while the
commitment process is pending. If the person does not continue to pose an immediate danger
of physical injury to self or others, the person shall be released from placement with the
community service provider pending further proceedings. No record of arrest may be charged
against the person.
Section 11. That § 27B-8-41 be amended to read as follows:
27B-8-41. No person with a developmental disability is subject to any experimental research
or hazardous treatment procedures without the consent of:
(1) The person with a developmental disability, if eighteen years of age or over and
capable of giving informed consent. If any person's capacity to give informed consent
is challenged, the person, a qualified mental retardation developmental disabilities
professional, physician, or interested person may file a petition with the court to
determine competency to give consent;
(2) The guardian of the person with a developmental disability, if the guardian is legally
empowered to execute such consent; or
(3) The parent or guardian of the person with a developmental disability, if the person
with a developmental disability is less than eighteen years of age.
No person with a developmental disability who is subject to an order of guardianship may
be subjected to experimental research or hazardous treatment procedures without prior
authorization of the circuit court.
Section 12. That § 28-6-23 be amended to read as follows:
28-6-23. Any payment of medical assistance by or through the Department of Social
Services to an individual who is an inpatient in a nursing facility, an intermediate care facility
for the mentally retarded individuals with developmental disabilities, or other medical
institution, is a debt due to the department. Any payment on behalf of any person fifty-five years
of age or older for nursing facility services, home and community based services, intermediate
care facility services for the mentally retarded individuals with intellectual disabilities, hospital
and prescription drug services, is a debt due the department. The Department of Social Services
shall establish a system of recovery of medical assistance correctly paid by or through the
department. The Department of Social Services may file a claim against the estate of the
surviving spouse of a medical assistance recipient to satisfy the debt established under this
section. The secretary of social services shall adopt rules, pursuant to chapter 1-26, to define the
scope of recoveries, establish hardship limitations on recoveries, establish limits on recoveries,
and provide rules required to obtain federal financial participation in the medical assistance
program.
For the purposes of this section, a surviving spouse is a person who was married to the
deceased medical assistance recipient when the recipient became eligible for medical assistance,
who has not divorced the medical assistance recipient, and who has not remarried after the
recipient's death.
Section 13. That § 28-6-24 be amended to read as follows:
28-6-24. Any payment of medical assistance by or through the Department of Social
Services to an individual who is an inpatient in a nursing facility, an intermediate care facility
for the
mentally retarded individuals with intellectual disabilities, or other medical institution
is a debt and creates a medical assistance lien against any real property in which the individual
has any ownership interest. The secretary of social services shall adopt reasonable and necessary
rules, pursuant to chapter 1-26, to define such individuals, establish the amount of the lien,
establish limitations on the lien as required by federal law or regulations, and provide any other
rules as may be required to obtain federal financial participation in the medical assistance
program. The lien so created shall be perfected against real estate as provided in § 28-6-25.
Section 14. That § 28-6-25 be amended to read as follows:
28-6-25. The Department of Social Services shall file a medical assistance real estate lien
with the register of deeds in any county where the individual has an ownership interest in real
property. The lien statement filed shall contain, at a minimum, the following information:
(1) The name and last known address of all owners of the real property;
(2) The legal description of the real estate to which the lien is to attach;
(3) The circumstances out of which the lien is claimed to have arisen and the
circumstances, if any, under which future accumulations may arise;
(4) The amount claimed as a lien and the probable amounts by which it may increase, if
known.
The register of deeds shall, without charge to the department, record the medical assistance
real estate lien in the real estate records, at which time the lien will attach to the real property
interest of the recipient described in subdivision (2) of this section. The lien shall remain in
effect for a period of twenty years from the time of recording in the county where the land is
located as provided in this section, unless released or foreclosed as provided by law.
If the individual is discharged or released from a nursing facility, intermediate care facility
for the
mentally retarded individuals with intellectual disabilities, or other medical institution,
other than by death or transfer to another or similar institution, the Department of Social
Services shall immediately, upon notice of the discharge or release, file with the register of
deeds a satisfaction of the lien which shall be recorded by the register of deeds in the real estate
records without charge.
Section 15. That § 28-13-23 be amended to read as follows:
28-13-23. The board of county commissioners may in its discretion allow and pay to poor
persons who may become county charges and who are of mature years and sound mind, and who
from their general character will probably be benefited thereby, and also to the parents of
mentally retarded children with intellectual disabilities and children otherwise helpless and
requiring the attention of their parents, and who are unable to provide for such children
themselves, such annual allowance as will not exceed the charge of their maintenance in the
ordinary mode, such board taking the usual amount of charges in like cases as the rule for
making such allowance.
Section 16. That § 34-1-19 be amended to read as follows:
34-1-19. The State Department of Health shall cooperate with and make available its
services to the State Department of Social Services, including the administrator of the South
Dakota Developmental Center--Redfield, for the purpose of advancing the health and well-being
of the mentally retarded individuals with intellectual disabilities placed under the control of the
department, whether institutionalized or not.
Section 17. That § 34-24-16 be amended to read as follows:
34-24-16. The State Department of Health shall provide for the development and carrying
out of an educational program among physicians, staffs of hospitals, public health nurses, and
the citizens of this state concerning the disease phenylketonuria, hypothyroidism, and other
metabolic diseases which may cause mental retardation intellectual disabilities for which
appropriate methods of detection, prevention, or treatment are available. This educational
program shall include information about the nature of the diseases and examinations for the
early detection of such diseases in order that proper measures may be taken to prevent mental
retardation intellectual disabilities.
Section 18. That § 58-17-30.1 be amended to read as follows:
58-17-30.1. An individual health insurance policy, which is delivered or issued for delivery
in this state and which provides that coverage of a dependent child shall terminate upon
attainment of the limiting age for dependent children specified in the policy, shall also provide
that attainment of such limiting age shall not operate to terminate the coverage of such child
while the child is and continues to be both (a) incapable of self-sustaining employment by
reason of mental retardation intellectual disability or physical handicap disability and (b) chiefly
dependent upon the policyholder for support and maintenance, provided proof of such
incapacity and dependency is furnished to the insurer by the policyholder within thirty-one days
of the child's attainment of the limiting age and subsequently as may be required by the insurer
but not more frequently than annually after the two-year period following the child's attainment
of the limiting age.
Section 19. That § 58-18-31 be amended to read as follows:
58-18-31. A group or blanket health insurance policy, which is delivered or issued for
delivery in this state and which provides that coverage of a dependent child shall terminate upon
attainment of the limiting age for dependent children specified in the policy, shall also provide
that attainment of such limiting age shall not operate to terminate the coverage of such child
while the child is and continues to be both (a) incapable of self-sustaining employment by
reason of mental retardation intellectual disability or physical handicap disability and (b) chiefly
dependent upon the policyholder for support and maintenance, provided proof of such
incapacity and dependency is furnished to the insurer by the policyholder within thirty-one days
of the child's attainment of the limiting age and subsequently as may be required by the insurer
but not more frequently than annually after the two-year period following the child's attainment
of the limiting age.
Section 20. For purposes of this Act and any terminology changed pursuant to the provisions
of this Act, "intellectual disability," or a variation of this term, means a condition previously
referred to as "mental retardation," or a variation of this term, and has the same meaning with
respect to programs, qualifications for programs, rights or responsibilities regarding persons
with such a condition.