CHAPTER 36-34
ADDICTION AND PREVENTION PROFESSIONALS
36-34-1 Definitions.
36-34-2 Board of Addiction and Prevention Professionals--Membership.
36-34-3 Appointment of board members--Terms.
36-34-4 Removal of member by Governor--Vacancy.
36-34-5 Meetings of board--Election of officers.
36-34-6 Minutes of board meetings.
36-34-7 Quorum--Majority vote.
36-34-8 Board within Department of Social Services--Functions--Report.
36-34-9 Acceptance, deposit, and use of funds--Continuous appropriation.
36-34-10 Compensation of board members.
36-34-11 Immunity of board and agents from personal liability.
36-34-12 Duties of board.
36-34-13 Promulgation of rules--Fees--Maximums.
36-34-13.1 Certification and licensure requirements.
36-34-13.2 Disclosure of information--Felony or certain crimes--Conviction or plea--Grant of license notwithstanding.
36-34-13.3 Renewal of certificate or license.
36-34-13.4 Display of certificate or license.
36-34-13.5 Certification in another state.
36-34-13.6 Physical or mental examination--Hearing--Application denial.
36-34-13.7 Inactive certificate or license--Reactivation--Expiration--Retired status.
36-34-13.8 Expired license--Reactivation by board.
36-34-13.9 Counseling by electronic means--Compliance.
36-34-14 36-34-14, 36-34-15. Repealed by SL 2013, ch 183, §§ 12, 13.
36-34-16 Enforcement--Injunction--Hearing.
36-34-17 Employment of attorney.
36-34-18 Complaints--Investigation--Disciplinary proceedings--Evidence not subject to discovery or disclosure--Testimony.
36-34-19 Repealed.
36-34-20 Repealed.
36-34-21 Grounds for disciplinary sanctions--Hearing--Notice.
36-34-22 Physical or mental examination--Summary revocation procedures on failure to comply.
36-34-23 Sanctions--Withdrawal of probation--Certification or licensure during appeal.
36-34-24 Summary suspension--Hearing--Appeal.
36-34-25 Reinstatement or new recognition, certification, or license--Costs of suspension or revocation.
36-34-26 Allegations--Burden of proof.
36-34-27 Application of chapter to ongoing recognition, certification, or licensure.
36-34-1. Definitions.
Terms used in this chapter mean:
(1) "Board," the South Dakota Board of Addiction and Prevention Professionals; and
(2) "Practitioner," a person certified, licensed, or recognized under this chapter in the practice of addiction counseling or prevention services who holds oneself out to the public by any title or description of services which uses the words certified addiction counselor, licensed addiction counselor, addiction counselor trainee, certified prevention specialist, prevention specialist trainee, or any derivatives thereof.
Source: SL 2004, ch 253, § 1; SL 2013, ch 183, § 1.
36-34-2. Board of Addiction and Prevention Professionals--Membership.
The South Dakota Board of Addiction and Prevention Professionals consists of nine members, three of whom shall be lay members and six of whom shall be professionals certified or licensed pursuant to this chapter. Each professional member shall be actively engaged in addiction counseling or prevention services and broadly represent a cross section of the profession.
Source: SL 2004, ch 253, § 3; SL 2005, ch 199, § 76; SL 2013, ch 183, § 2.
36-34-3. Appointment of board members--Terms.
The Governor shall appoint the members to the board for terms of three years which shall begin on the thirty-first day of October. The appointee's term shall expire on October thirtieth in the third year of appointment.
Source: SL 2004, ch 253, § 4; SL 2005, ch 199, § 77; SL 2012, ch 16, § 6.
36-34-4. Removal of member by Governor--Vacancy.
The Governor may remove any member of the board for cause. If there is a vacancy on the board the Governor shall appoint a new member to serve the unexpired term. No member of the board may serve for more than three successive full terms. The appointment to an unexpired term is not considered a full term.
Source: SL 2004, ch 253, § 5; SL 2005, ch 199, § 78.
36-34-5. Meetings of board--Election of officers.
The board shall annually elect a president, vice president, and a secretary-treasurer from its members. The board shall meet at least once a year at a place and time determined by the president. However, a majority of the board may call a meeting without the assent of the president.
Source: SL 2004, ch 253, § 6; SL 2013, ch 183, § 3.
36-34-6. Minutes of board meetings.
The secretary of the board shall provide for taking and keeping the minutes of all board meetings.
Source: SL 2004, ch 253, § 7.
36-34-7. Quorum--Majority vote.
A majority of board members constitutes a quorum. A majority vote of those present constitutes a decision of the entire board.
Source: SL 2004, ch 253, § 8.
36-34-8. Board within Department of Social Services--Functions--Report.
The board is within the Department of Social Services. The department shall provide all administrative functions other than those of the board member serving as secretary. The board shall submit an annual report and such records, information, and reports in the form and at such times as required by the secretary of social services.
Source: SL 2004, ch 253, § 9; SL 2011, ch 1 (Ex. Ord. 11-1), § 163, eff. Apr. 12, 2011; SL 2013, ch 183, § 4.
36-34-9. Acceptance, deposit, and use of funds--Continuous appropriation.
The board may accept any funds which may be made available to it from any source. All funds received by the board shall be paid to the state treasurer weekly or as prescribed by the state treasurer. The state treasurer shall keep the money in a separate account for the board. The money in that account is continuously appropriated to the board for administering and enforcing this chapter. No expense incurred may exceed the total money collected by the board under the provisions of this chapter.
Source: SL 2004, ch 253, § 10; SL 2013, ch 183, § 5.
36-34-10. Compensation of board members.
The board members shall be paid per diem compensation and allowable expenses pursuant to § 4-7-10.4 for their services on the board.
Source: SL 2004, ch 253, § 11; SL 2013, ch 183, § 6.
36-34-11. Immunity of board and agents from personal liability.
The board, its members, and its agents are immune from personal liability for actions taken in good faith in the discharge of the board's responsibilities, and the state shall hold the board, its members, and its agents harmless from all costs, damages, and attorney fees arising from claims and suits against them with respect to matters to which such immunity applies.
Source: SL 2004, ch 253, § 12; SL 2013, ch 183, § 7.
36-34-12. Duties of board.
The board shall:
(1) Promulgate rules that set standards for professional practice of addiction counseling and prevention services and other rules as necessary for the administration of this chapter. All rules shall be promulgated pursuant to chapter 1-26;
(2) Be responsible for all disciplinary proceedings under this chapter;
(3) Establish, by rules promulgated pursuant to chapter 1-26, education, training and competency, continuing education, and ethical standards governing the examination and practice of practitioners under this chapter;
(4) Examine, or cause to be examined, for competency, eligible applicants, for certification or licensure to practice addiction counseling and prevention services. Examinations shall be held at least semiannually;
(5) Issue certificates and licenses to those applicants who successfully complete the certification or licensing requirements and renew the certifications and licenses of those practitioners who continue to meet the standards of this chapter;
(6) Maintain a record of all practitioners which includes the practitioner's status, certificate or license number, date the certification or licensure was granted, renewal date, and any public record of discipline; and
(7) Establish and collect, pursuant to rules promulgated pursuant to chapter 1-26, fees for applications, recognition, certification, licensure, dual credentials, examination, upgrades, reciprocity, continuing education, renewal, reinstatement, and all services authorized by this chapter.
Source: SL 2004, ch 253, § 13; SL 2013, ch 183, § 8.
36-34-13. Promulgation of rules--Fees--Maximums.
The board may promulgate rules, pursuant to chapter 1-26, to provide fees for all services and charges authorized by this chapter. The fees may not exceed the following maximums:
(1) Certified addiction counselor, certified prevention specialist, or licensed addiction counselor application and examination fee, three hundred dollars;
(2) Certified addiction counselor, certified prevention specialist, or licensed addiction counselor retest fee, two hundred fifty dollars;
(3) Certified addiction counselor, certified prevention specialist, or licensed addiction counselor renewal fee, four hundred dollars;
(4) Certified addiction counselor, certified prevention specialist, or licensed addiction counselor reinstatement fee, two hundred dollars;
(5) Status upgrade fee, one hundred fifty dollars;
(6) Addiction counselor trainee or prevention specialist trainee recognition fee, one hundred fifty dollars;
(7) Addiction counselor trainee or prevention specialist trainee renewal fee, one hundred fifty dollars;
(8) Addiction counselor trainee or prevention specialist trainee reinstatement fee, one hundred fifty dollars;
(9) International certificate fee, twenty dollars;
(10) Dual credential renewal fee, four hundred dollars;
(11) Inactive license or certificate fee, fifty dollars; and
(12) Temporary license or certificate fee, one hundred dollars.
Source: SL 2004, ch 253, § 14; SL 2013, ch 183, § 9; SL 2023, ch 140, § 1.
36-34-13.1. Certification and licensure requirements.
No person may represent oneself as a licensed or certified addiction counselor, addiction counselor trainee, certified prevention specialist, prevention specialist trainee, or any other title that includes such words unless the person is certified or licensed under this chapter.
Source: SL 2008, ch 199, § 2; SL 2013, ch 183, § 11.
36-34-13.2. Disclosure of information--Felony or certain crimes--Conviction or plea--Grant of license notwithstanding.
Any applicant seeking recognition, certification, or licensure shall disclose to the board whether the applicant has been convicted of, plead guilty to, or plead no contest to any felony, to any crime involving or relating to the practice of counseling, or to any crime involving dishonesty or moral turpitude, in any state, federal, foreign jurisdiction, tribal, or military court. An applicant's failure to disclose this information may result in denial, revocation, suspension, or refusal of recognition, certification, or licensure.
The board may grant a license to an applicant who has been convicted of or pled guilty to a felony, to any crime involving or relating to the practice of counseling, or to any crime involving dishonesty or moral turpitude if the board determines that the applicant does not constitute a risk to public safety.
Source: SL 2013, ch 183, § 10; SL 2023, ch 140, § 2.
36-34-13.3. Renewal of certificate or license.
The board may renew a certificate or license if the practitioner:
(1) Submits an application to the board for renewal before the expiration of the certificate or license;
(2) Pays the required renewal fee; and
(3) Provides proof of compliance with the continuing education requirements prescribed by the board.
If a practitioner fails to renew a certificate or license on or before November thirtieth in an odd-numbered year, the certificate or license is automatically suspended.
If a practitioner does not submit a renewal application before the expiration of the certificate or license, the board shall notify the holder that a renewal application has not been received by the board and that the holder may not practice addiction counseling or prevention services. The board may renew the certificate or license if, within thirty days after the expiration date of the certificate or license, the holder submits a renewal application and provides proof of compliance with the continuing education requirements prescribed by the board.
Source: SL 2013, ch 183, § 14; SL 2023, ch 140, § 3.
36-34-13.4. Display of certificate or license.
Each certificate or license shall be conspicuously displayed at the primary place of practice within thirty days after issuance of such certificate or license.
Source: SL 2013, ch 183, § 15.
36-34-13.5. Certification in another state.
The board may grant a certificate to any person who, at the time of application, is certified in another state or territory of the United States that imposes substantially the same requirements as this chapter, has taken and passed an examination similar to that required under this chapter, and has not been convicted of a felony within five years of the date of application, and if convicted of a felony, has completed all sentencing requirements prior to the date of application.
Source: SL 2013, ch 183, § 16.
36-34-13.6. Physical or mental examination--Hearing--Application denial.
If the board suspects that the physical or mental health of any applicant may jeopardize or endanger anyone who seeks assistance from the applicant, the board may require that the applicant be examined by a health care provider, approved by the board, who is licensed or authorized to practice pursuant to title 36. The board shall pay all costs of the examination.
The board may deny the application if, after a hearing held in accordance with chapter 1-26, the board finds by clear and convincing evidence that the applicant's physical or mental health may jeopardize or endanger anyone who seeks services from the applicant.
Source: SL 2023, ch 140, § 4.
36-34-13.7. Inactive certificate or license--Reactivation--Expiration--Retired status.
The board may place a certificate or license on inactive status at the request of a practitioner and upon payment of a fee prescribed by the board. An inactive certificate or license expires four years after the date of issuance. The board may reactivate the certificate or license if the practitioner:
(1) Pays the required renewal fee; and
(2) Provides proof to the board of having completed at least forty hours of continuing education during the two-year period immediately preceding the reactivation request.
If the practitioner does not reactivate the certificate or license before the date of expiration, all provisions applicable to an applicant for certification or licensure apply in order to restore the certificate or license to active status.
Any certificate or license on retired status as of July 1, 2023, expires on November 30, 2025, unless the practitioner meets the requirements for reactivation before November 30, 2025.
Source: SL 2023, ch 140, § 5.
36-34-13.8. Expired license--Reactivation by board.
The board may reactivate an expired certificate or license within four years following the date of expiration, if the holder of the expired certificate or license:
(1) Pays any applicable renewal fees required for the period of expiration;
(2) Provides proof of any continuing education required for the period of expiration; and
(3) Provides proof of passing a national examination approved by the board after the date the certificate or license expired.
Source: SL 2023, ch 140, § 6.
36-34-13.9. Counseling by electronic means--Compliance.
Any person who practices counseling through electronic means and provides addiction counseling or prevention services to a patient located in this state is engaged in the practice of addiction counseling or prevention services in this state, regardless of the person's physical location. Any person who provides addiction counseling or prevention services through electronic means must comply with the provisions of this chapter and rules promulgated by the board under this chapter.
Source: SL 2023, ch 140, § 7.
36-34-16. Enforcement--Injunction--Hearing.
The board may use its own staff or employ certified or licensed addiction counselors, certified prevention specialists, agents, or investigators to assist in the enforcement of this chapter or any rule promulgated by the board. Any person violating the provisions of this chapter may be enjoined from further violations by an action brought by the state's attorney of the county where the violations occurred or by an action brought by any citizen in the state. The attorney general, the board, or the state's attorney may apply to the circuit court for the county in which a violation of this chapter is alleged to have occurred for an order enjoining or restraining the commission or continuance of the acts. The board may authorize a hearing examiner to conduct the hearing required to determine a violation of this chapter.
Source: SL 2004, ch 253, § 17; SL 2013, ch 183, § 17.
36-34-17. Employment of attorney.
The board may, if it deems best for the enforcement of this chapter or in the conduct of its duties, employ an attorney designated by the attorney general and subject to the supervision, control, and direction of the attorney general. The board shall fix and determine the compensation and period of service of the attorney who shall be paid out of the funds of the board.
Source: SL 2004, ch 253, § 18.
36-34-18. Complaints--Investigation--Disciplinary proceedings--Evidence not subject to discovery or disclosure--Testimony.
The board shall process a complaint regarding a practitioner as set forth in chapter 36-1C. The board shall maintain a record of each complaint.
Notwithstanding any provision of chapter 36-1C, a member, agent, or appointee of the board may investigate a complaint to determine whether the practitioner committed the alleged violation. The investigator, if a member of the board, may dismiss the complaint if it appears to the member, in consultation with the board president, that the practitioner did not commit a violation. If the investigator is an agent or appointee of the board, only the board president may dismiss the complaint. If an investigator and a practitioner agree upon a disposition of a complaint, the disposition must be approved by the board.
The board must conduct any disciplinary proceeding in accordance with chapter 1-26. Any decision of the board entered in a contested proceeding may be appealed to the circuit court within thirty days. A certificate or license remains in effect during the pendency of an appeal, unless suspended under § 36-34-24.
Testimony or documentary evidence of any kind obtained by the board during the investigation of a complaint is not subject to discovery or disclosure under chapter 15-6, or any other provision of law, and is not admissible as evidence in any legal proceeding, unless the complaint becomes a contested case under chapter 1-26. No person who has participated in the investigation of a complaint on behalf of the board may testify as an expert witness or be compelled to testify for any party in any civil action, if the subject matter of the investigated complaint is a basis for the civil action.
Source: SL 2004, ch 253, § 19; SL 2013, ch 183, § 18; SL 2021, ch 168, § 44; SL 2023, ch 140, § 8.
36-34-21. Grounds for disciplinary sanctions--Hearing--Notice.
Any practitioner subject to this chapter shall practice in accordance with the standards established by the board and is subject to the exercise of the disciplinary sanctions enumerated in § 36-34-23 if, after a hearing in the manner provided in chapter 1-26, the board finds that:
(1) A practitioner has employed or knowingly cooperated in fraud or material deception in order to obtain a certificate or license to practice the profession, or has engaged in fraud or material deception in the course of professional services or activities;
(2) A practitioner has been convicted in any court of a felony;
(3) A practitioner has engaged in or permitted the performance of unacceptable patient care by the practitioner or by auxiliaries working under the practitioner's supervision due to any deliberate or negligent act or failure to act;
(4) A practitioner has knowingly violated any provision of this chapter or board rules;
(5) A practitioner has continued to practice although the practitioner has become unfit to practice due to professional incompetence, failure to keep abreast of current professional theory or practice, physical or mental disability, or addiction or severe dependency upon or use of alcohol or other drugs which endanger the public by impairing a practitioner's ability to practice safely;
(6) A practitioner has engaged in lewd or immoral conduct in connection with the delivery of addiction counseling or prevention services to consumers;
(7) A practitioner has or is employing or assisting an uncertified or unlicensed person to hold himself or herself out as a certified or licensed addiction counselor or certified prevention specialist;
(8) A practitioner submitted false, misleading, or inaccurate information to the board in obtaining issuance or renewal of recognition, certification, or licensure; or
(9) A practitioner has failed to provide information or documents requested by the board in the investigation or prosecution of a professional or ethical complaint filed with the board.
Each legally required notice shall be sent via ordinary first-class mail to the most recent address that the practitioner has reported to the board. The practitioner has the duty to maintain an accurate and current mailing address with the board.
Source: SL 2004, ch 253, § 22; SL 2013, ch 183, § 21.
36-34-22. Physical or mental examination--Summary revocation procedures on failure to comply.
The board may, in a disciplinary proceeding, order a practitioner to submit to a reasonable physical or mental examination if the practitioner's physical or mental capacity to practice safely is at issue. Failure to comply with a board order to submit to a physical or mental examination renders a practitioner liable to the summary revocation procedures described in § 36-34-24.
Source: SL 2004, ch 253, § 23.
36-34-23. Sanctions--Withdrawal of probation--Certification or licensure during appeal.
The board may impose any of the following sanctions, singly or in combination, if the board finds that a practitioner has violated any part of § 36-34-21:
(1) Revoke a practitioner's certification or license to practice for an indefinite length of time;
(2) Suspend a practitioner's certification or license for a specific or indefinite length of time;
(3) Censure a practitioner;
(4) Issue a letter of reprimand;
(5) Place a practitioner on probationary status and require the practitioner to report regularly to the board on the matters which are the basis for probation;
(6) Limit the practitioner's practice to areas prescribed by the board and continue to renew professional education until a satisfactory degree of skill has been attained in those areas which are the basis of the probation;
(7) Require the practitioner to reimburse the board in an amount equal to the costs incurred for the investigation and disciplinary hearing including the amount paid by the board for legal expenses, attorney fees, court reporters, and any mediator or hearing officer, provided there is clear and convincing evidence of wrongdoing on the part of the practitioner.
The board may withdraw the probation if the board finds the deficiencies that resulted in disciplinary action have been remedied.
Certification or licensure shall remain in effect during the pendency of an appeal unless suspended under § 36-34-24.
Source: SL 2004, ch 253, § 24; SL 2013, ch 183, § 22.
36-34-24. Summary suspension--Hearing--Appeal.
The board may summarily suspend a practitioner's recognition, certification, or licensure in advance of a final adjudication or during the appeals process if the board finds that a practitioner would represent a clear and immediate danger to the public health and safety if the practitioner were allowed to continue to practice. A practitioner whose recognition, certification, or licensure is suspended under this section is entitled to a hearing before the board within twenty days after the effective date of the suspension. The practitioner may subsequently appeal the suspension to circuit court in accordance with chapter 1-26.
Source: SL 2004, ch 253, § 25; SL 2013, ch 183, § 23.
36-34-25. Reinstatement or new recognition, certification, or license--Costs of suspension or revocation.
Any practitioner whose recognition, certification, or license to practice has been suspended or revoked may be reinstated or a new recognition, certification, or license may be issued, as the case may be, if in the discretion of the board, such action is warranted. The board may require the applicant to pay all costs of the proceedings resulting in the applicant's suspension or revocation including the amount paid by the board for legal expenses and attorney fees.
Source: SL 2004, ch 253, § 26; SL 2013, ch 183, § 24.
36-34-26. Allegations--Burden of proof.
In the prosecution of any person for violation of this chapter, it is not necessary to allege or prove lack of valid recognition, certification, or licensure. Proof of recognition, certification, or licensure is a matter of defense to be established by the defendant.
Source: SL 2004, ch 253, § 27; SL 2013, ch 183, § 25.
36-34-27. Application of chapter to ongoing recognition, certification, or licensure.
Nothing in this chapter may be construed to limit the ongoing recognition, certification, or licensure of any person at the level of recognition, certification, or licensure and for the time period established under the former South Dakota Chemical Dependency Counselor Certification Board or the Certification Board for Alcohol and Drug Professionals.
Source: SL 2004, ch 253, § 28; SL 2013, ch 183, § 26.
