2017 Session Laws

CHAPTER 230

EXO 2017-01

EXECUTIVE ORDERS

Executive Reorganization Order No. 2017-01


    WHEREAS, Article IV, Section 8, of the constitution of the state of South Dakota provides that, "Except as to elected constitutional officers, the Governor may make such changes in the organization of offices, boards, commissions, agencies and instrumentalities, and in allocation of their functions, powers and duties, as he considers necessary for efficient administration. If such changes affect existing law, they shall be set forth in executive orders, which shall be submitted to the Legislature within five legislative days after it convenes, and shall become effective, and shall have the force of law, within ninety days after submission, unless disapproved by a resolution concurred in by a majority of all the members of either house"; and

    WHEREAS, this executive order has been submitted to the 92nd Legislative Assembly on the 4th legislative day, being the 13th day of January, 2017;

    IT IS, THEREFORE, BY EXECUTIVE ORDER, directed that the executive branch of state government be reorganized to comply with the following sections of this order.

GENERAL PROVISIONS

    Section 1. This executive order shall be known and may be cited as the "Executive Reorganization Order 2017-01".

    Section 2. Any agency not enumerated in this order, but established by law within another agency which is transferred to a principal department under this order, shall also be transferred in its current form to the same principal department and its functions shall be allocated between itself and the principal department as they are now allocated between itself and the agency within which it is established.

    Section 3. "Agency" as used in this order shall mean any board, authority, commission, department, bureau, division or any other unit or organization of state government.

    Section 4. "Function" as used in this order shall mean any authority, power, responsibility, duty or activity of an agency, whether or not specifically provided for by law.

    Section 5. Unless otherwise provided by this order, division directors shall be appointed by the head of the department of which the division is a part, and shall be removable at the pleasure of the department head, provided, however, that both the appointment and removal of division directors shall be subject to approval by the Governor.

    Section 6. It is the intent of this order not to repeal or amend any laws relating to

functions performed by an agency, unless the intent is specifically expressed in this order or unless there is an irreconcilable conflict between this order and those laws.

    Section 7. If a part of this order is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this order is invalid in one or more of its applications, the part remains in effect in all valid applications.

    Section 8. Except when inconsistent with the other provisions of this order all rules, regulations and standards of the agencies involved in executive reorganization in effect on the effective date of this order, shall continue with full force and effect until they are specifically altered, amended, or revoked in the manner provided by law, unless the statutory authority for such rules is superseded by this order.

    Section 9. It is hereby declared that the sections, clauses, sentences and parts of this executive order are severable, are not matters mutual essential inducement, and any of them may be excised by any court of competent jurisdiction if any section, clause, sentence or part of this executive order would otherwise be unconstitutional or ineffective.

    Section 10. In the event that it has been determined that a function of a transferred agency, which has not been eliminated by this order, and its associated records, personnel, equipment, facilities, unexpended balances or appropriations, allocations or other funds have not been clearly allocated to an agency, the Governor shall specify by interim procedures the allocation of the function and its associated resources. At the next legislative session following the issuance of such interim procedures, the Governor shall make recommendations concerning the proper allocation of the functions or transferred agencies which are not clearly allocated by this order. Any interim procedures issued in conjunction with this section shall be filed with the Secretary of State.

    Section 11. The rights, privileges and duties of the holders of bonds and other obligations issued, and of the parties to contracts, leases, indentures, and other transactions entered into, before the effective date of this order, by the state or by any agency, officer, or employee thereof, and covenants and agreements as set forth therein, remain in effect, and none of those rights, privileges, duties, covenants, or agreements are impaired or diminished by abolition of an agency in this order. The agency to which functions of another agency are transferred is substituted for that agency and succeeds to its rights and leases, indentures, and other transactions.

    Section 12. No judicial or administrative suit, action or other proceeding lawfully commenced before the effective date of this order by or against any agency or any officer of the state, in his official capacity or in relation to the discharge of his official duties, shall abate or be affected by reason of taking effect of any reorganization under the provision of this order. The court may allow the suit, action or other proceeding to be maintained by or against the successor of any agency or any officer affected by this order.

    Section 13. If any part of this order is ruled to be in conflict with federal requirements which are a prescribed condition to the receipt of federal aid by the state, an agency or a political subdivision, that part of this order has no effect and the Governor may by executive order make necessary changes to this order to receive federal aid, and the changes will remain in effect until the last legislative day of the next legislative session or until the Legislature completes

legislation addressed to the same questions, whichever comes first.

    Section 14. Pursuant to § 2-16-9, the Code Commission and Code Counsel of the Legislative Research Council are required to make the name and title changes necessary to correlate and integrate the organizational changes made by this Executive Reorganization Order into the South Dakota Codified Laws.

    Section 15. Any provisions of law in conflict with this order are superseded.

    Section 16. Whenever a function is transferred by this order, all personnel, records, property, unexpended balances or appropriations, allocations or other funds utilized in performing the function are also transferred by this order.

    Section 17. The effective date of this Executive Reorganization Order #2017-01 shall be ninety days after its submission to the Legislature.

Adult Services and Aging Division of the Department of Social Services
transferred to the Department of Human Services


    Section 18. The Division of Adult Services and Aging in the Department of Social Services is hereby transferred to the Department of Human Services. The Secretary of the Department of Human Services shall perform the functions of the Secretary of the Department of Social Services, relating to the Division of Adult Services and Aging.

    Section 19. The functions of the South Dakota Advisory Council on Aging established by Executive Order 2012-04 shall now be performed in relation to the Department of Human Services. The Secretary of Human Services shall perform the functions of the former Secretary of Social Services relating to the South Dakota Advisory Council on Aging.

    Section 20. That § 1-36-36 be amended to read as follows:

    1-36-36. Each person hired by the Department of Social Services to serve as a social service aide, family services specialist, family services specialist supervisor, and regional manager in the Division of Child Protection Services or by the Department of Human Services as a home health aide, adult services and aging specialist, social services supervisor, and regional manager in the Division of Adult Services and Aging shall submit to a criminal background investigation, by means of fingerprint checks by the Division of Criminal Investigation and the Federal Bureau of Investigation. The department shall submit completed fingerprint cards to the Division of Criminal Investigation before the prospective new employee enters into service. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Division of Criminal Investigation to the Federal Bureau of Investigation for a national criminal history record check. Any person whose employment is subject to the requirements of this section may enter into service on a temporary basis pending receipt of results of the criminal background investigation. The department may, without liability, withdraw its offer of employment or terminate the temporary employment without notice if the report reveals a disqualifying record. Any person whose employment is subject to the requirements of this section shall pay any fees charged for the criminal record check.

    Section 21. That § 1-36A-1.3 be amended to read as follows:



    1-36A-1.3. Agencies constituting department. The Department of Human Services shall consist of the following agencies:

    (1) The Division of Developmental Disabilities;
    (2) South Dakota Developmental Center--Redfield;
    (3) The Division of Rehabilitation Services;
    (4) The Division of Service to the Blind and Visually Impaired;
    (5) The Division of Adult Services and Aging
.

    Section 22. That § 22-46-5 be amended to read as follows:

    22-46-5. The person or agency that receives, pursuant to § 22-46-7, a report of abuse, neglect, or exploitation of an elder or adult with a disability shall also forward the report to the Office of the Attorney General, if the person or agency determines that reasonable suspicion exists to support further investigation. In investigating a violation of this chapter, law enforcement agencies shall cooperate with and assist the Department of Social Human Services. Upon receiving a report made pursuant to this chapter, the law enforcement agency shall evaluate whether a criminal investigation is appropriate.

    Section 23. That § 22-46-7 be amended to read as follows:

    22-46-7. A report of abuse, neglect, or exploitation under this chapter may be made orally or in writing to the state's attorney of the county in which the elder or disabled adult resides or is present, to the Department of Social Human Services, or to the law enforcement officer. The state's attorney or law enforcement officer, upon receiving a report, shall immediately notify the Department of Social Human Services.

    Section 24. That § 22-46-9 be amended to read as follows:

    22-46-9. Any:

    (1)    Physician, dentist, doctor of osteopathy, chiropractor, optometrist, podiatrist, religious healing practitioner, hospital intern or resident, nurse, paramedic, emergency medical technician, social worker, or any health care professional;

    (2)    Psychologist, licensed mental health professional, or counselor engaged in professional counseling; or

    (3)    State, county, or municipal criminal justice employee or law enforcement officer;

who knows, or has reasonable cause to suspect, that an elder or adult with a disability has been or is being abused, neglected, or exploited, shall, within twenty-four hours, report such knowledge or suspicion orally or in writing to the state's attorney of the county in which the elder or adult with a disability resides or is present, to the Department of Social Human Services, or to a law enforcement officer. Any person who knowingly fails to make the required report is guilty of a Class 1 misdemeanor.

    A person described in this section is not required to report the abuse, neglect, or

exploitation of an elder or adult with a disability if the person knows that another person has already reported to a proper agency the same abuse, neglect, or exploitation that would have been the basis of the person's own report.

    Section 25. That § 28-1-44 be transferred to chapter 1-36A and amended to read as follows:

    28-1-44. The Department of Social Human Services may establish a program of services for adults and the elderly to promote the development, coordination, and utilization of resources to meet the long-term needs of adults and the elderly and to provide services to assist them in their social and health problems. The program may include program planning and development, coordination of services for adults and the elderly, and administration of programs funded under the Older Americans Act, Social Security Act, and other federal programs which are available for health, social, transportation, nutrition, counseling, protective, and referral services for adults and the elderly.

    Section 26. That § 28-1-45 be transferred to chapter 1-36A.

    Section 27. That § 28-1-45.1 be transferred to chapter 1-36A.

    Section 28. That § 28-1-45.2 be transferred to chapter 1-36A.

    Section 29. That § 28-1-45.5 be transferred to chapter 1-36A.

    Section 30. That § 28-1-45.7 be transferred to chapter 1-36A.

    Section 31. That § 29A-5-110 be amended to read as follows:

    29A-5-110. Any adult individual may be appointed as a guardian, a conservator, or both, if capable of providing an active and suitable program of guardianship or conservatorship for the minor or protected person, and if not employed by any public or private agency, entity, or facility that is providing substantial services or financial assistance to the minor or protected person. The court may waive the prohibition on appointing an individual as guardian or conservator because of the individual's employment if the court finds the appointment is in the best interest of the minor or protected person.

    Any public agency or nonprofit corporation may be appointed as a guardian, a conservator, or both, if it is capable of providing an active and suitable program of guardianship or conservatorship for the minor or protected person, and if it is not providing substantial services or financial assistance to the minor or protected person.

    Any bank or trust company authorized to exercise trust powers or to engage in trust business in this state may be appointed as a conservator if it is capable of providing a suitable program of conservatorship for the minor or protected person.

    The Department of Human Services or the Department of Social Services may be appointed as a guardian, a conservator, or both, for individuals under its care to whom it is providing services or financial assistance, but such appointment may only be made if there is no individual, nonprofit corporation, bank or trust company, or other public agency that is

qualified and willing to serve.

    No individual or entity, other than a bank or trust company, whose only interest is that of a creditor, is eligible for appointment as either a guardian or conservator.

    No individual who has been convicted of a felony is eligible for appointment as a guardian or conservator unless the court finds appointment of the person convicted of a felony to be in the best interests of the person for whom the guardianship or conservatorship is sought. As part of the best interest determination, the court shall consider the nature of the offense, the date of offense, and the evidence of the proposed guardian's or proposed conservator's rehabilitation.

    A person, except for a financial institution or its officers, directors, employees, or agents, or a trust company, who has been nominated for appointment as a guardian or conservator, shall obtain an Interstate Identification Index criminal history record check and a record check of South Dakota state court civil judgments for abuse, neglect, or exploitation of an elder or adult with a disability. The nominee shall file the results of these record checks with the court at least ten days prior to the appointment hearing date, unless waived or modified by the court for good cause shown by affidavit filed simultaneously with the petition for appointment.

    The judge may not sign an order appointing a guardian or conservator until the record check results have been filed with the court and reviewed by the judge. The record check results, or the lack thereof, shall be certified by affidavit. The court may not require a record check upon the application of a petitioner for a temporary guardianship or temporary conservatorship. The court may waive the record check for good cause shown.

    Section 32. That § 29A-5-305 be amended to read as follows:

    29A-5-305. A petition for the appointment of a guardian, a conservator, or both, may be filed by the person alleged to need protection, by an interested relative, by the individual or facility that is responsible or has assumed responsibility for the person's care or custody, by the individual or entity that the person has nominated as guardian or conservator, or by any other interested person, including the department of human services or the department of social services.

    The petition shall state the petitioner's name, place of residence, post office address, and relationship to the person alleged to need protection, and shall, to the extent known as of the date of filing, state the following with respect to the person alleged to need protection and the relief requested:

    (1)    The person's name, date of birth, place of residence or location, and post office address or, if it is alleged that the person is an absentee, the person's last known residence and post office address;

    (2)    The names and post office addresses of the person's nearest relatives, in the following order:

        (a)    The spouse and children, if any; or if none
        (b)    The parents and brothers and sisters, if any; or if none


        (c)    The nearest known relatives who would be entitled to succeed to the person's estate by intestate succession;

    (3)    The name, place of residence or location, and post office address of the individual or facility that is responsible for or has assumed responsibility for the person's care or custody;

    (4)    The name, place of residence or location, and post office address of any agent or agents designated under a durable power of attorney of which the person alleged to need protection is the principal, and the petitioner shall attach a copy of any such power or powers of attorney, if available;

    (5)    Whether the person's incapacity will prevent attendance at the hearing and the reasons therefor;

    (6)    If the petition alleges that the person is an absentee, a statement of the relevant circumstances, including the time and nature of the disappearance or detention and a description of any search or inquiry concerning the person's whereabouts;

    (7)    The type of guardianship or conservatorship requested, the reasons therefor, and the interest of the petitioner in the appointment;

    (8)    The name, post office address and, if the proposed guardian or conservator is an individual, the individual's age, occupation and relationship to the person alleged to need protection;

    (9)    The name, post office address and, if the person alleged to need protection has nominated a guardian or conservator who is an individual, the individual's age, occupation and relationship to the person alleged to need protection;

    (10)    The name and post office address of any guardian or conservator currently acting, whether in this state or elsewhere;

    (11)     If the appointment of a limited guardian is requested, the specific areas of protection and assistance to be included in the court's order of appointment; and

    (12)    If the appointment of a limited conservator is requested, the specific areas of management and assistance to be included in the court's order of appointment.

     Dated this 13th day of January, 2017

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