27B-7-24. County review board--Composition and appointment of board--Qualifications of members--Joint boards--Alternates.

Each county shall form a county review board which shall hear involuntary commitment hearings and review continued commitments of persons with developmental disabilities in accordance with §§ 27B-7-37 and 27B-7-39. The county review board shall consist of two people appointed by the board of county commissioners for a three-year term and a magistrate judge or lawyer appointed by the presiding circuit judge of the circuit in which the county is situated. The two members appointed by the county commission shall be residents of the county. The member appointed by the presiding circuit judge need not be a resident of the county. The members of the county review board who are appointed by the board of county commissioners may be appointed to more than one term, but may not serve more than two consecutive terms. The magistrate judge or lawyer shall serve as the chair of the county review board. The state's attorney for the county may not serve on the county review board. Each appointing authority may also appoint alternates. Pursuant to chapter 1-24, two or more counties may jointly contract to establish a county review board to serve all contracting counties.

Source: SL 2000, ch 131, § 56.

27B-7-25. Oaths of office of board members.

Before entering upon the duties of office, each member of a county review board shall take and subscribe an oath or affirmation to support the Constitution of the United States and the Constitution of this state and to discharge faithfully all official duties according to law. The oath shall be filed in the office of the county auditor.

Source: SL 2000, ch 131, § 57.

27B-7-25.1. Board members immune from civil liability when acting in good faith--Exception.

Any person serving as a member of a county review board, whose action regarding the applications or petitions for involuntary commitment or for the safekeeping otherwise of persons subject to involuntary commitment is taken in good faith, is immune from any civil liability that might otherwise be incurred or imposed. The immunity from civil liability under this section does not apply if injury results from gross negligence or willful or wanton misconduct.

Source: SL 2000, ch 130, § 2.

27B-7-26. Board jurisdiction of commitment and safekeeping of involuntarily committed persons--Process used in discharge of duties.

The county review board has jurisdiction over all applications or petitions for involuntary commitment or for the safekeeping of persons subject to involuntary commitment within its county, except in cases otherwise specially provided for. The board chair may issue subpoenas and compel obedience thereto, and do any act of a court necessary and proper for the purpose of discharging the duties required of the board.

Source: SL 2000, ch 131, § 58; SL 2002, ch 136, § 1.

27B-7-27. Petition for board-ordered admission asserting need for immediate intervention--Contents.

Any interested person may file with the chair of the county review board a verified petition which asserts that a person meets the criteria for board-ordered commitment as specified in § 27B-7-37. If any person is alleged to have a developmental disability and to be in such condition that immediate intervention is necessary for the protection from the physical harm of self or others, any person, eighteen years of age or older, may petition the chair of the county review board where such person with an alleged developmental disability is found, stating the factual basis for concluding that the person is developmentally disabled and in immediate need of intervention. The petition shall be upon a form and be verified by affidavit. The petition shall include the following:

(1)    A statement by the petitioner that the petitioner believes, on the basis of personal knowledge, that the person is a danger to self or others;

(2)    The specific nature of the danger;

(3)    A summary of the information upon which the statement of danger is based;

(4)    A statement of facts which caused the person to come to the petitioner's attention;

(5)    The address and signature of the petitioner and a statement of the petitioner's interest in the case; and

(6)    The name of the person to be evaluated, the address, age, marital status, and occupation of the person, and the name and address of the person's nearest relative.

Source: SL 2000, ch 131, § 59.

27B-7-28. Board order for examination and report on petition--Contents of report--County to be reimbursed for additional examination.

If a petition filed pursuant to § 27B-7-27 appears on its face to be sufficient, the chair of the county review board shall order that a psychiatric or psychological evaluation be performed and a report of the findings and recommendations be completed. The board chair shall appoint a licensed psychologist or psychiatrist within three days after receipt of the petition. The licensed psychologist or psychiatrist shall make the examination and prepare a report within five working days from receipt of the written notice from the board ordering the examination and report, containing the information required in § 27B-7-31. If it appears, based upon the foregoing evaluation, the criteria for commitment is met, a copy of the report shall be provided to Department of Human Services. The person has the right to obtain an additional examination paid for by the county that may be placed in evidence before the board, the reasonable expense of which shall be reimbursed to the county unless the person is indigent. A lien for the amount of these costs may be filed upon the person's real and personal property to ensure payment.

Source: SL 2000, ch 131, § 60; SL 2002, ch 136, § 2.

27B-7-29. Board to notify department of petition--Department to prepare report--Filing.

The chair of the county review board shall give written notice of the petition to the Department of Human Services which shall prepare a report containing a review of the person's supports and service needs and a recommendation as to appropriate service locations. The reports shall be filed with the county review board within ten working days from receipt of the written notice from the board ordering the examination and report.

Source: SL 2000, ch 131, § 61; SL 2002, ch 136, § 3.

27B-7-30. Disclosure of information.

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 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.

Source: SL 2000, ch 131, § 62; SL 2013, ch 125, § 9.

27B-7-31. Contents of report in § 27B-7-28.

The report required by § 27B-7-28 shall contain:

(1)    Evaluations of the person's mental, physical, and emotional status, and review of social and educational history; and

(2)    A statement as to whether the person meets the criteria for board-ordered commitment specified in § 27B-7-37.

Source: SL 2000, ch 131, § 63.

27B-7-32. Finding of residence.

If the county review board finds that a person meets the criteria in § 27B-7-37, the board shall enter a finding, based on the criteria in § 28-13-3, of the county of residence of the person or a finding that the person is a nonresident of this state.

Source: SL 2000, ch 131, § 64.

27B-7-32.1. Request to reopen hearing regarding residence.

Within ten days of the auditor's receipt of the board's findings regarding the residence and summary of proofs thereon, the county in which the residence was found to be, other than the referring county, may request the committing county review board to reopen the hearing upon the question of the person's residence by mailing a request to the chair of the county review board.

Source: SL 2002, ch 136, § 4.

27B-7-32.2. Appearance before board--Notice--Findings of board.

Upon receipt of the request to reopen the commitment hearing, the county review board shall, as soon as practicable, afford the county determined to be the person's county of residence an opportunity to appear before the board, at a time and place set by the board and not more than thirty days from the date of the request to reopen the hearing. Notice of the reopened hearing shall be given to the county where the person was found and to the county requesting the reopening of the hearing at least ten days prior to the reopened hearing by mailing notice thereof to the respective county auditors. Either county appearing at the reopened hearing may present any evidence it may have to establish that it is not the county of residence of the person. The board shall then determine, by a preponderance of evidence, the county of residence of the person and either affirm or modify its prior finding. The ultimate finding of residence shall be filed with the clerk of courts of the committing county and the county of residence with copies mailed to the administrator of the center or other facility where the person is undergoing treatment.

Source: SL 2002, ch 136, § 5.

27B-7-32.3. Costs of reopened hearing--Lien against patient not permitted.

The referring county shall pay any expenses incurred by the committing board in conducting any reopened hearing, subject to reimbursement by the county ultimately proven to be the county of residence. No lien may be placed against the patient for the costs incurred in conducting any reopened hearing requested by county regarding the question of residence.

Source: SL 2002, ch 136, § 6.

27B-7-32.4. Finding of nonresidency to be forwarded to attorney general.

If a person is found at an initial or reopened hearing not to be a resident of the state, the county review board shall forward to the attorney general a copy of its findings and a summary of the proofs upon which the findings are based.

Source: SL 2002, ch 136, § 7.

27B-7-32.5. Attorney general may request reopened hearing--Notice.

Within ten days of the attorney general's receipt of the committing board's findings regarding residence and summary of proofs thereon, the attorney general may request the committing county review board to reopen the hearing by mailing a request to the chair of the committing county review board. Notice of the reopened hearing shall be given to any county adversely interested and to the attorney general at least ten days prior to the reopened hearing by mailing notice to the county auditor of any county adversely interested and to the attorney general.

Source: SL 2002, ch 136, § 8.

27B-7-32.6. Presentation of evidence--Burden of proof--Filing of finding.

Any county adversely interested or the attorney general may present evidence to establish the residence of the person at the reopened hearing. The board shall then determine, by a preponderance of evidence, whether the person is a resident of a particular county or whether the patient is not a resident of the state and shall affirm or modify its prior finding. The ultimate finding of residence shall be filed with the clerk of courts of the committing county and copies thereof mailed to the director of the facility or program where the person is undergoing treatment and to the auditor of any county found to be the residence of the person or to the attorney general if the person is found not to be a resident of the state.

Source: SL 2002, ch 136, § 9.

27B-7-32.7. Costs of reopened hearing--Reimbursement by county or state.

The referring county shall pay any expenses incurred by the committing board in conducting any reopened hearing, subject to reimbursement by the county ultimately proven to be the county of residence or if a nonresident of the state, by the State of South Dakota.

Source: SL 2002, ch 136, § 10.

27B-7-32.8. Refund of expenses of reopened hearing.

The county of residence shall refund with lawful interest thereon any expenses incurred by the attorney general on account of a person whose residence is in a county of this state.

Source: SL 2002, ch 136, § 11.

27B-7-33. Time and place of hearing--Notice--Copies of order after hearing.

Upon receipt of a petition and reports as provided for in §§ 27B-7-27, 27B-7-28, and 27B-7-29, the chair of the county review board shall:

(1)    Fix a date, time, and place for a hearing within ten days, excluding Saturdays, Sundays, and holidays, of the board's receipt of the reports;

(2)    Provide five days written notice, excluding Saturdays, Sundays, and holidays, of the time, date, and place of the hearing to the petitioner, to the person alleged to meet the criteria for board-ordered commitment, to the psychologist or psychiatrist completing the report, to the person's attorney, or other attorney as specified in § 27B-7-35, to the director of any facility in which the person is being served, and to the secretary of the Department of Human Services; and

(3)    Following the hearing, provide copies of all orders to the persons identified in subdivision (2).

Source: SL 2000, ch 131, § 65; SL 2002, ch 136, § 12.

27B-7-34. Procedure governing hearings.

Hearings convened pursuant to this title shall be governed by the rules of evidence.

Source: SL 2000, ch 131, § 66; SL 2002, ch 136, § 13.

27B-7-35. Participation by state's attorney.

The state's attorney of the county in which a county review board is meeting shall participate, either in person or by assistant, in hearings convened by the board under this chapter.

Source: SL 2000, ch 131, § 67.

27B-7-36. Dismissal of petition if not upheld by professional report--Discharge of subject.

The petition shall be dismissed by the chair of the county review board unless the evaluating psychiatrist or psychologist concludes, in writing, that the person meets the criteria for board-ordered commitment. If the county review board finds that a person does not meet the criteria for board-ordered commitment, the board shall enter a finding to that effect, shall dismiss the petition, and shall direct that the person be immediately discharged if the person has been detained prior to the hearing.

Source: SL 2000, ch 131, § 68.

27B-7-37. Order for involuntary commitment of person posing immediate danger to self or others--Protective custody.

A county review board may order the involuntary commitment of a person if the review board finds by clear and convincing evidence supported by written findings of fact and conclusions of law that the person has a developmental disability, and that due to the development disability the person poses an immediate danger of physical injury to self or others making it necessary or advisable to receive appropriate supports and services. If the person is found to meet the criteria for involuntary commitment, the county review board may order the person to be placed under the control and care of the Department of Human Services for placement in appropriate programs. If the person refuses to comply with this order, the board may direct a law enforcement officer to take the person into protective custody.

Source: SL 2000, ch 131, § 69; SL 2002, ch 136, § 14.

27B-7-38. Board may issue detention order--Person detained without professional's recommendation to be examined within given time or released--Professional examination and report--Person released if not dangerous.

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 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.

Source: SL 2000, ch 131, § 70; SL 2002, ch 136, § 15; SL 2013, ch 125, § 10.

27B-7-39. Annual review of commitment order--Provision of report--Notice of hearing--Participation at hearing--Procedures--Results of hearing.

The county review board shall review the commitment order and accompanying information at least annually to make a determination of the continued need and supporting justification for commitment. Prior to the annual review, but not less than thirty days prior to the anniversary date of the commitment order, the developmental disability community service provider shall provide a report to the county review board that issued the original commitment order regarding the person's supports, services, and progress. Following ten days notice to the person, the person's attorney, and the Department of Human Services, the county review board shall hold a review hearing. The review hearing shall include participation by the state's attorney, Department of Human Services, the community service provider, and the person's attorney. The rights and procedures applicable during an initial commitment hearing are applicable to review hearings. A petition pursuant to § 27B-7-27 need not be filed. At the conclusion of the review hearing, the county review board may issue an order of continued commitment or immediately discharge the person from involuntary commitment if the conditions in § 27B-7-37 justifying commitment no longer exist.

Source: SL 2000, ch 131, § 71; SL 2002, ch 136, § 16.

27B-7-39.1. Rights of person during hearing--Waiver of rights--Exclusion of persons.

The person has the right to appear personally at any hearing and testify, but may not be compelled to do so. The person has the right to subpoena and cross-examine witnesses and to present evidence. If the person chooses not to appear, the person's attorney shall state on the record that the person has been informed of the hearing and of the right to appear and chooses not to exercise this right. Documentation of the reasons for the person's decision may not be required. The county review board may exclude any person not necessary for the conduct of the proceedings from the hearings, except any person requested to be present by the person who is the subject of the hearing.

Source: SL 2002, ch 136, § 17.

27B-7-39.2. Attendance of court reporter--Record of proceedings.

A court reporter shall attend all hearings of the county review board and keep a stenographic record of all proceedings; or a record of all hearings shall be recorded by tape recorder or other sound reproducing equipment. If a tape recorder or other sound reproducing equipment is used, the equipment shall be of such quality that each word of the testimony and rulings made with reference thereto can be clearly heard and understood. All recorded testimony shall be preserved for at least five years.

Source: SL 2002, ch 136, § 18.

27B-7-39.3. Request for transcript or copy--Costs.

A person who has been committed may request a certified transcript or, if a tape recorder is utilized, a copy of the taped testimony of the hearing. To obtain a copy, the person shall pay for a transcript or copy of the tape recorded testimony or shall file an affidavit that the person is without means to pay for such transcript or tape recording. If the affidavit is found true by the county review board, the expense of the transcript or copy of the tape recorded testimony is a charge upon the county of residence of the person or, if a nonresident of the state, upon the State of South Dakota.

Source: SL 2002, ch 136, § 19.

27B-7-40. Department to notify board of death of resident.

The Department of Human Services shall notify the chair of the county review board of the death of any person with a developmental disability committed by the review board.

Source: SL 2000, ch 131, § 72.

27B-7-41. Counsel to represent subject--Procedural rights.

The person alleged to meet the criteria for board-ordered commitment shall be represented by counsel. Such representation is not subject to waiver, and the person is entitled:

(1)    To be present at the hearing;

(2)    To obtain a continuance in order to adequately prepare a case;

(3)    To present documents and witnesses;

(4)    To cross-examine witnesses; and

(5)    To require testimony in person from the psychiatrist or psychologist who performed the evaluation required in 27B-7-28.

Source: SL 2000, ch 131, § 73.

27B-7-42. Payment of counsel.

Counsel appointed for a person pursuant to this title shall be reasonably compensated for such services and for necessary expenses and costs incident to the proceedings in an amount to be fixed by the circuit court and in an amount approved by the chair of the county review board of the referring county. The costs described shall be allowed and paid out of county funds and may not be assessed against the person with a developmental disability.

Source: SL 2000, ch 131, § 74; SL 2002, ch 136, § 20.

27B-7-43. Liability for costs.

The referring county shall pay the costs of proceedings pursuant to this title, including costs for transportation and any incidental costs of the person with a developmental disability, subject to reimbursement by the county ultimately proven to be the county of residence or, if a nonresident of the state, by the State of South Dakota. The costs described shall be allowed and paid for out of county funds and may not be assessed against the person with a developmental disability.

Source: SL 2000, ch 131, § 75; SL 2002, ch 136, § 21.

27B-7-44. Diagnosis of developmental disability or commitment by board does not constitute incompetence.

No person is incompetent to manage his or her affairs, to contract, to hold professional or occupational or vehicle operator's licenses, to marry and obtain a divorce, to register and vote, or to make a will solely by reason of a diagnosis of a developmental disability, or by reason of a commitment by a county review board.

Source: SL 2000, ch 131, § 76.

27B-7-45. Right of appeal of hearing or review--Person to be advised of right--Appeal procedures--Rights not to be denied on grounds of indigency.

A person may, within thirty days, appeal a final order of a county review board pursuant to any hearing or review conducted under this title. In the case of a minor, or a person for whom a guardian has been appointed, the right to appeal may be exercised on behalf of the person. The person shall be advised both verbally and in writing of this right at the conclusion of any proceedings. The appeal shall be conducted in accordance with the provisions of chapter 1-26.

None of the rights granted in this section may be denied due to a person's inability to pay for costs and fees incurred in such proceedings. The county of residence, or the State of South Dakota if a nonresident of the state, shall provide for the cost of representation of the person through the conclusion of actions brought under this section.

Source: SL 2000, ch 131, § 77; SL 2002, ch 136, § 22.