CHAPTER 36-2
PRACTITIONERS OF HEALING ARTS IN GENERAL
36-2-1 Definition of terms.
36-2-1.1 36-2-1.1. Repealed by SL 1978, ch 4, § 2 (5).
36-2-2 License required to diagnose or treat human ills--Practice subject to statutory limitations--Violation as misdemeanor.
36-2-3 Use of word "doctor" as evidence of practice--Basic science certificate required.
36-2-4 Legally qualified persons exempt.
36-2-5 Persons holding academic degrees exempt.
36-2-6 Psychoanalysts exempt.
36-2-7 Psychologists exempt.
36-2-8 Officers of armed forces and federal service exempt.
36-2-9 Consulting practitioners from other states exempt.
36-2-10 Religious practitioners exempt.
36-2-11 36-2-11. Repealed by SL 1992, ch 158, § 68.
36-2-12 Injunction to prevent violations--Election of remedies.
36-2-13 Practice statutes not repealed.
36-2-14 36-2-14. Transferred to §§ 36-2-1.1 and 36-3-1.1 and repealed by SL 1975, ch 230, § 1; SL 1978, ch 4, § 2(5).
36-2-15 Discrimination between practitioners of vision services prohibited to public employees.
36-2-16 Repealed.
36-2-16.1 Medical record--Definitions.
36-2-16.2 Medical record--Provision upon request.
36-2-16.3 Medical record--Patient portal access fee prohibited.
36-2-16.4 Medical record--Copy fees--Other costs.
36-2-16.5 Medical record--Search fee--Designees or third parties.
36-2-16.6 Medical record--Certification fee.
36-2-16.7 Medical record--Fees authorized for subpoena response.
36-2-17 Medical record--Immunity from liability.
36-2-18 Unaffiliated health care facility.
36-2-19 Practitioner prohibited from referring patient to certain unaffiliated health care facilities.
36-2-20 Assistance in birth if occurs other than in hospital or medical clinic.
36-2-21 Department authorized to process waiver requests for international medical graduates.
36-2-22 Department authorized to issue rules for processing waiver requests--Scope--Fee.
36-2-1. Definition of terms.
Terms used in this chapter, unless the context otherwise requires, mean:
(1) "Basic science," anatomy, physiology, bacteriology, pathology and chemistry, so far as same relates to the human system or mind as generally treated in each or all of said subjects;
(2) "Diagnosis," the use professionally of any means for the discovery, recognition or determination of character of any human ill;
(3) "Healing art," "healing," "art of healing," "practicing healing," "practicing of healing," any system, treatment, operation, diagnosis, prescription, or practice for the ascertainment, cure, relief, palliation, adjustment, or practice for the ascertainment, cure, relief, palliation, adjustment, or correction of any human disease, ailment, deformity, injury, unhealthy or abnormal physical or mental condition;
(4) "Human ill," any human disease, ailment, deformity, injury or unhealthy or abnormal physical or mental condition of any nature;
(5) "Person," any individual or group of individuals;
(6) "Treatment," the use of drugs, surgery, including appliances, manual or mechanical means, or any other means of any nature whatsoever, for the cure, relief, palliation, adjustment or correction of any human ill as defined herein.
Source: SL 1939, ch 104, § 1; SL 1953, ch 130, § 1; SDC Supp 1960, §§ 27.0317, 27.0401; SDCL, §§ 36-2-1, 36-3-1; SL 1986, ch 27, § 38.
36-2-2. License required to diagnose or treat human ills--Practice subject to statutory limitations--Violation as misdemeanor.
No person shall in any manner engage in, offer to engage in, or hold himself out as qualified to engage in the diagnosis or treatment of any human ill, unless such person is the holder of a legal and unrevoked license or certificate issued under the laws of South Dakota authorizing such person to practice the healing art covered by such license and is practicing thereunder in the manner and subject to the limitations provided by the laws of the State of South Dakota for the issuance of such license or certificate for the practice thereunder. A violation of this section is a Class 2 misdemeanor. Each day of violation is a separate offense.
Source: SL 1953, ch 130, § 2; SDC Supp 1960, § 27.0318; SL 1992, ch 158, § 67.
36-2-3. Use of word "doctor" as evidence of practice--Basic science certificate required.
If any person appends to his name the word "doctor" or any contraction thereof, any other word, abbreviation, or designation indicating that he is qualified to make diagnosis or treatment, such shall constitute prima facie evidence that such person is holding himself out as qualified to engage in such diagnosis or treatment.
Source: SL 1953, ch 130, § 2; SDC Supp 1960, § 27.0318; SL 1986, ch 27, § 39.
36-2-4. Legally qualified persons exempt.
Nothing contained in this chapter shall be construed to apply to any legally qualified person when engaged exclusively in the practice of his profession, as defined by law.
Source: SL 1953, ch 130, § 3; SDC Supp 1960, § 27.0319 (3).
36-2-5. Persons holding academic degrees exempt.
Nothing contained in this chapter shall be construed to prevent a person holding the doctorate degree in philosophy, education, dentistry, optometry, podiatry, veterinary science, psychology, or any academic field, from appending to his name the word "doctor" or any contraction thereof, when such degree has been bestowed by a reputable institution.
Source: SL 1953, ch 130, § 3; SDC Supp 1960, § 27.0319 (1).
36-2-6. Psychoanalysts exempt.
Nothing contained in this chapter shall be construed to apply to any qualified lay psychoanalyst who is practicing psychoanalysis in cooperation with a physician or doctor of medicine.
Source: SL 1953, ch 130, § 3; SDC Supp 1960, § 27.0319 (5).
36-2-7. Psychologists exempt.
Nothing contained in this chapter shall be construed to interfere in any way with a qualified psychologist in the discharge of his professional duties while employed by any state or governmental agency, or any recognized college or university.
Source: SL 1953, ch 130, § 3; SDC Supp 1960, § 27.0319 (7).
36-2-8. Officers of armed forces and federal service exempt.
Nothing contained in this chapter shall be construed to apply to any person who is qualified and authorized to practice any of the healing arts who is a commissioned officer in the United States Army, Navy, Air Force, or Marine Hospital Service, or of the United States Veterans' Administration, or of the United States Public Health Service, in the actual performance of his duties.
Source: SL 1953, ch 130, § 3; SDC Supp 1960, § 27.0319 (2).
36-2-9. Consulting practitioners from other states exempt.
Nothing contained in this chapter shall be construed to apply to any licensed person practicing any of the healing arts outside of this state when in actual consultation with a licensed practitioner of the healing arts in this state.
Source: SL 1953, ch 130, § 3; SDC Supp 1960, § 27.0319 (4).
36-2-10. Religious practitioners exempt.
Nothing contained in this chapter shall be construed to interfere with the practice of those who endeavor to prevent or cure disease or suffering by spiritual means or prayer.
Source: SL 1953, ch 130, § 3; SDC Supp 1960, § 27.0319 (6).
36-2-12. Injunction to prevent violations--Election of remedies.
Any person violating the provisions of this chapter may be enjoined from further violations in the circuit courts of this state under the rules of civil procedure at the suit of the state's attorney of the county wherein the violations occurred or suit may be brought by any citizen of the state. The Board of Examiners shall be empowered to commence actions for injunctions for violation of this chapter as an alternate to criminal proceedings, and the commencement of one proceeding by the board constitutes an election.
Source: SL 1957, ch 121; SDC Supp 1960, § 27.0321; revised pursuant to SL 1972, ch 15, § 4.
36-2-13. Practice statutes not repealed.
This chapter shall not be construed as repealing any existing statute prohibiting the practice of the healing arts or the penalties prescribed for violation thereof.
Source: SL 1953, ch 130, § 5; SDC Supp 1960, § 27.0320.
36-2-15. Discrimination between practitioners of vision services prohibited to public employees.
No official or employee of any department, board, commission, or agency of this state, or of any of its political subdivisions, shall in the performance of official duties interfere with any person's freedom of choice in the selection of practitioners licensed to perform vision services pursuant to chapters 36-4 and 36-7, nor shall any such official or employee discriminate between such licensees within the scope of their respective practices when requiring or recommending such services to be performed by such licensees under any public program.
Source: SL 1977, ch 293.
36-2-16. Repealed.
Source: SL 1979, ch 236, § 2; SL 1981, ch 258, § 3; SL 1992, ch 158, § 69; SL 2023, ch 134, § 9.
36-2-16.1. Medical record--Definitions.
Terms used in this §§ 36-2-16.1 to 36-2-17, inclusive, mean:
(1) “Electronic health information,” an electronic record of information about a patient’s health, which is:
(a) Created, gathered, consulted, and managed by the patient’s health care provider; and
(b) Made available to the patient through a patient portal;
(2) “Health care provider,” any licensed health care facility or any person licensed, certified, or otherwise authorized or permitted by law to provide health care;
(3) “Medical record,” information, in any form or medium, that pertains to a patient’s health care, including the patient's medical history, diagnosis, prognosis, medical condition or billing, and is maintained by a health care provider for purposes of caring for the patient’s health, provided the term does not include any information subject to the provisions of § 62-7-8;
(4) “Medical records company,” an entity that stores, locates, or copies medical records for a health care provider;
(5) “Patient,” any of the following:
(a) An individual who receives or has received health care from a health care provider;
(b) Any person authorized to make health care decisions for an individual referenced in subsection (a), pursuant to chapter 29A-5 or 34-12C, or §§ 59-7-2.1 and 59-7-2.4; or
(c) If the individual referenced in subsection (a) is a minor, the minor’s parent, unless the minor lawfully obtained the health care documented in the applicable medical record without the consent or notification of the parent; and
(6) “Patient Portal,” a secure online website that:
(a) Is owned and operated by a health care provider; and
(b) Gives a patient access to the patient’s electronic health information from anywhere, using an internet connection.
Source: SL 2023, ch 134, § 1.
36-2-16.2. Medical record--Provision upon request.
Upon receiving a written request or an authorization for release of a medical record, signed by a patient, a health care provider or medical records company shall provide a copy of the patient’s medical record, if available, to the patient or to any person duly authorized by the patient to receive the record.
Source: SL 2023, ch 134, § 2.
36-2-16.3. Medical record--Patient portal access fee prohibited.
A health care provider may not charge a patient a fee for access to the patient’s electronic health information through a patient portal.
Source: SL 2023, ch 134, § 3.
36-2-16.4. Medical record--Copy fees--Other costs.
A health care provider or a medical records company may charge the following fees:
(1) For a paper copy of a medical record not specified below, the fee may not exceed ten dollars for the first ten pages and thirty-three cents for each additional page;
(2) For an electronic copy of a medical record not specified below, the fee may not exceed twenty-five cents per page;
(3) For a printed copy of an x-ray, magnetic resonance imaging, computerized tomography scan, or any other form of medical imaging, the fee may not exceed ten dollars; and
(4) For an x-ray, magnetic resonance imaging, computerized tomography scan, or any other form of medical imaging copied onto a compact disc, digital video disc, or other transportable electronic media, the fee may not exceed fifteen dollars.
A health care provider or medical records company may also impose a charge to cover the cost of postage or shipping, together with any applicable tax.
Source: SL 2023, ch 134, § 4.
36-2-16.5. Medical record--Search fee--Designees or third parties.
If a patient directs a health care provider or a medical records company to provide a copy of the patient’s medical record directly to another person designated by the patient, or if a third party requests a copy of a patient’s medical record pursuant to an authorization signed by the patient, the healthcare provider or medical records company may charge, in addition to any other fee allowed under §§ 36-2-16.1 to 36-2-17, inclusive, a fee to search for the medical record, regardless of whether any record is found. The search fee may not exceed eighteen dollars.
Source: SL 2023, ch 134, § 5.
36-2-16.6. Medical record--Certification fee.
A health care provider or medical records company may charge a fee for providing a signed certification, attesting that the copy of the medical record is an accurate and complete copy of the patient's original medical record on file for the time period specified in the request. The certification fee may not exceed ten dollars.
Source: SL 2023, ch 134, § 6.
36-2-16.7. Medical record--Fees authorized for subpoena response.
Sections 36-2-16.1 to 36-2-16.6, inclusive, apply to any medical record produced by a health care provider or medical records company pursuant to a subpoena issued under the authority of a court, an administrative body, or other tribunal.
Source: SL 2023, ch 134, § 7.
36-2-17. Medical record--Immunity from liability.
A licensee, complying in good faith with §§ 36-2-16.1 to 36-2-16.7, inclusive, may not be held liable for any injury or damage proximately resulting from that compliance.
Source: SL 1981, ch 258, § 4; SL 2023, ch 134, § 8.
36-2-18. Unaffiliated health care facility.
As used in § 36-2-19, unaffiliated health care facility is both a health care facility licensed pursuant to chapter 34-12 and any imaging center, pharmacy, surgical center, laboratory, supplier of durable medical equipment, home health agency, rehabilitation facility, or similar facility or business providing services or products intended for the diagnosis or treatment of any human ill.
Source: SL 1994, ch 290, § 1.
36-2-19. Practitioner prohibited from referring patient to certain unaffiliated health care facilities.
It is unprofessional for a practitioner of the healing arts to refer a patient to an unaffiliated health care facility in which the practitioner, the practitioner's immediate family, or a corporation or limited liability company owned in whole or in part by the practitioner has a substantial financial interest without disclosing the general nature of this interest to the patient, the patient's parent or guardian, at the time of the referral. As used in this section, a substantial financial interest is an ownership interest of twenty-five percent or more, a direct creditor's interest in twenty-five percent or more of the facility's debt, or a direct lessor's interest in twenty-five percent of more of a lease to the facility. Immediate family means the spouse and children of the practitioner. Such conduct constitutes grounds for discipline by the practitioner's appropriate licensing board.
Source: SL 1994, ch 290, § 2.
36-2-20. Assistance in birth if occurs other than in hospital or medical clinic.
Nothing in this title limits the right of any member of the parent's family to assist in the birth of that parent's child if the birth does not occur in a hospital or medical clinic.
Source: SL 1998, ch 222, § 1.
36-2-21. Department authorized to process waiver requests for international medical graduates.
The Department of Health may establish a program for processing waiver requests for international medical graduates.
Source: SL 2001, ch 198, § 1.
36-2-22. Department authorized to issue rules for processing waiver requests--Scope--Fee.
The Department of Health may promulgate rules pursuant to chapter 1-26 to provide for the establishment and use of a program for processing waiver requests for international medical graduates pursuant to § 36-2-21, including criteria, procedures, and forms necessary for processing waiver requests and to establish a fee not to exceed five hundred dollars for each waiver request processed.
Source: SL 2001, ch 198, § 2.
