TITLE 27B
DEVELOPMENTALLY DISABLED PERSONS
Chapter
01 Definitions And General Provisions
02 State Programs For Developmentally Disabled Persons
03 State Institutions For Developmentally Disabled Persons
04 Community Services For Developmentally Disabled Persons
05 Voluntary Admission To Facilities For The Mentally Retarded [Repealed]
06 State Guardianship Of Mentally Retarded Persons [Repealed]
06A Limited Guardianships For Incapacitated Persons [Repealed]
07 Commitment And Board-Ordered Care Of Developmentally Disabled Persons
08 Care, Treatment And Rights Of Residents In Facilities For Developmentally Disabled Persons
09 Voluntary Admission To Facilities For The Mentally Retarded [Repealed]
10 Civil Commitment Following Dismissal Of Felony Sex Offense Charge
27B-1-1 to 27B-1-13. Repealed.
27B-1-14
Purpose.
27B-1-15
Administrative functions of department.
27B-1-16
Use of other boards or councils.
27B-1-17
Definitions.
27B-1-18
Developmental disability defined.
27B-1-18.1
Intellectual disability defined.
27B-1-19
Drug screening policy for community support providers.
27B-1-14. Purpose.
The purposes of this title are to enhance environments and provide supports to enable persons with developmental disabilities to achieve and maintain physical well-being, personal and professional satisfaction, participation as community members, and safety from abuse, neglect, and exploitation; and to promote and safeguard the human dignity, constitutional and statutory rights, social well-being, and general welfare of all persons with developmental disabilities in the state.
Source: SL 2000, ch 131, § 2.
27B-1-15. Administrative functions of department.
The Department of Human Services shall develop, adopt, approve, coordinate, monitor, evaluate, and administer state and federally funded services for persons with developmental disabilities and their families within South Dakota in cooperation with all governmental and private resources and organizations concerned with developmental disabilities.
From existing department funds or special funds appropriated by the Legislature, the department shall:
(1) Carry out all functions and duties required by statute through collaboration and consultation with persons with developmental disabilities, their families, guardians, community resources, organizations, and people who provide services throughout the state;
(2) Develop and maintain a statewide system of community-based services that reflect the choices and needs of persons with developmental disabilities and their families;
(3) Facilitate or provide technical assistance to community service providers in planning, developing, and implementing services and supports for persons with developmental disabilities;
(4) Cooperate with federal agencies in the administration of the federal statutes and acts relating to developmental disabilities programs, accept the benefits of such federal statutes and acts subject to chapter 4-8, and comply with the requirements thereof;
(5) Conform the state plans to the federal requirements and submit them to the federal agencies; and
(6) Maintain a data collection system on the prevalence of developmental disabilities, including autism, based on the needs of persons with developmental disabilities in the current service delivery system.
Source: SL 2000, ch 131, § 3.
27B-1-16. Use of other boards or councils.
The Department of Human Services may establish and use state, regional, or local boards or councils to assist in the planning and implementation of community services.
Source: SL 2000, ch 131, § 4.
27B-1-17. Definitions.
Terms used in this title mean:
(1) "Aversive intervention technique," the application, contingent upon the exhibition of a maladaptive behavior, of extremely unpleasant, startling, or painful stimuli that have a potentially noxious effect;
(2) "Behavior intervention program," a written set of instructions for changing or modifying the behavior of a person with a developmental disability that specifies behavior objectives for completion, procedures to implement behavior objectives, and data collection procedures and is written to increase desirable behaviors or decrease undesirable behaviors;
(3) "Community services provider," any person or entity, whether for-profit or not-for-profit, which receives compensation for providing services to persons with developmental disabilities;
(4) "Community support provider," any nonprofit facility that is certified by the department to provide prevocational or vocational training, residential training, and other supports and services as needed by persons with developmental disabilities;
(5) "Danger to others," behavior which supports a reasonable expectation that the person will inflict serious physical injury upon another person in the very near future. Such behavior shall be evidenced by recent acts which constitute a danger of serious physical injury to another person. Such acts may include a recently expressed threat if the threat is such that, if considering its context or person's recent previous acts, it is substantially supportive of an expectation that the threat will be carried out;
(6) "Danger to self," recent behavior or related physical conditions which show there is a danger of serious personal harm in the very near future as evidenced by an inability to provide for some basic human needs such as food, clothing, shelter, physical health, or personal safety;
(7) "Department," the Department of Human Services;
(8) "Destructive behavior," behavior that presents a danger to self or a danger to others;
(9) "Director," the director of the South Dakota Developmental Center or a community service provider;
(10) "Facility," the South Dakota Developmental Center in Redfield, South Dakota;
(11) "Informed consent," written consent voluntarily, knowingly, and competently given without any element of force, fraud, deceit, duress, threat, or other form of coercion, after explanation of all information that a reasonable person would consider significant to the decision in a manner reasonably comprehensible to general lay understanding;
(12) "Least restrictive," an intervention in the life of a person with a developmental disability that is the least intrusive and disruptive to the person's life and represents the least departure from normal patterns of living that can be effective in meeting the person's developmental needs;
(13) "PASARR" or "Preadmission Screening/Annual Resident Review," a federally mandated review of the application to a skilled nursing facility by a person with a known or suspected mental illness or developmental disability, or both, in order to determine if the skilled nursing facility or another community service provider can appropriately serve the person's needs;
(14) "Qualified developmental disabilities professional," any person with at least one year of experience working directly with 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.
Source: SL 2000, ch 131, § 5; SL 2009, ch 138, § 1; SL 2013, ch 125, § 8.
27B-1-18. Developmental disability defined.
A developmental disability is any severe, chronic disability of a person that:
(1) Is attributable to a mental or physical impairment or combination of mental and physical impairments;
(2) Is manifested before the person attains age twenty-two;
(3) Is likely to continue indefinitely;
(4) Results in substantial functional limitations in three or more of the following areas of major life activity: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, and economic self-sufficiency; and
(5) Reflects the person's need for an array of generic services, met through a system of individualized planning and supports over an extended time, including those of a life-long duration.
Source: SL 2000, ch 131, § 6.
27B-1-18.1. Intellectual disability defined.
For purposes of §§ 10-62-1, 10-62-2, 13-32-13, 22-46-1, 26-7A-85, 27A-1-1, 27A-15-1.1, 27B-1-17, 27B-7-30, 27B-7-38, 27B-8-41, 28-6-23, 28-6-24, 28-6-25, 28-13-23, 34-24-16, 58-17-30.1, and 58-18-31 and any terminology changed pursuant to the provisions of those sections, "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.
Source: SL 2013, ch 125, § 20.
27B-1-19. Drug screening policy for community support providers.
Any community support provider shall have a drug screening policy for applicants seeking employment whose primary duty includes patient or resident care or supervision. Any community support provider shall have a drug screening policy for employees whose primary duty includes patient or resident care or supervision, based upon reasonable suspicion of illegal drug use by such employee.
Source: SL 2005, ch 21, § 6; SL 2009, ch 138, § 2.
27B-2-1 to 27B-2-13.
Repealed.
27B-2-14 to 27B-2-19. Repealed.
27B-2-20
Coordination of use of state facilities.
27B-2-21
General functions of department.
27B-2-22
Residence of developmentally disabled person.
27B-2-23
Application by person with developmental disability for departmental
services.
27B-2-24
Refusal or termination of departmental services by person with
developmental disability.
27B-2-25
Rules for procedure and conduct of contested cases.
27B-2-26
Standards for community service providers, South Dakota Developmental
Center-Redfield, and other nonpublic facilities, services, and supports--Rules.
27B-2-27
Employee orientation to policies, procedures, and resident rights.
27B-2-28
Recommendations to Legislature and Governor.
27B-2-29
Hospital survey and construction law unimpaired.
27B-2-20. Coordination of use of state facilities.
The Department of Human Services shall coordinate the utilization of existing facilities, state departments, boards, or commissions involved in the field of developmental disabilities.
Source: SL 2000, ch 131, § 7.
27B-2-21. General functions of department.
The Department of Human Services may receive, acquire, have charge of, and operate all properties for the purposes authorized by statute. The department may receive gifts and contributions from public and private sources and acquire other properties as an agency of the State of South Dakota and hold and use them for statutory purposes. However, the department may not purchase, lease anything except office quarters as approved by the state commissioner of human resources and administration, sell, encumber, or alienate any real property without the specific consent and prior approval of the Legislature.
Source: SL 2000, ch 131, § 8; SL 2024, ch 1 (Ex. Ord. 24-1), §§ 13, 34, eff. Apr. 8, 2024.
27B-2-22. Residence of developmentally disabled person.
A person with a developmental disability from another state or territory who enters this state for the purpose of receiving services or education shall retain the residence of that person's parent, guardian, or agency standing in the place of the person's parent or guardian.
Source: SL 2000, ch 131, § 9.
27B-2-23. Application by person with developmental disability for departmental services.
Any person with a developmental disability or any other interested person may make application for department services by contacting in person or in writing any official state or field office of the Department of Human Services and participating in an evaluation which may include mental, physical, and educational assessments so that the department may determine if services are needed.
Source: SL 2000, ch 131, § 10.
27B-2-24. Refusal or termination of departmental services by person with developmental disability.
A person with a developmental disability or that person's parent or guardian may refuse services offered by the Department of Human Services. If the person with a developmental disability or that person's parent or guardian accepts services from the department, the department, that person's parent or guardian, or the person with a developmental disability may terminate the services at any time.
Source: SL 2000, ch 131, § 11.
27B-2-25. Rules for procedure and conduct of contested cases.
The secretary of the department shall promulgate, pursuant to chapter 1-26, reasonable and necessary rules governing the procedure and conduct of contested cases, including notification of the denial of services.
Source: SL 2000, ch 131, § 12.
27B-2-26. Standards for community service providers, South Dakota Developmental Center-Redfield, and other nonpublic facilities, services, and supports--Rules.
The secretary of the Department of Human Services shall promulgate, pursuant to chapter 1-26, reasonable and necessary rules establishing standards for community service providers, South Dakota Developmental Center--Redfield, and other nonpublic facilities, services, and supports for persons with developmental disabilities and for services and supports to be provided or purchased by the Department of Human Services under this title. Such rules shall be adopted in the following areas:
(1) Staff requirements, to include orientation, continuing staff development, instruction on positive behavioral supports and medication administration;
(2) Administration, audit requirements, and record keeping;
(3) Services and supports provided;
(4) Client rights and safety;
(5) Facility fire safety and sanitation requirements;
(6) Respite care;
(7) Family support;
(8) Preadmission Screening/Annual Resident Review (PASARR);
(9) Such other standards and requirements as are necessary for federal financial participation; and
(10) Any other services and supports necessary to implement this title.
Source: SL 2000, ch 131, § 13.
27B-2-27. Employee orientation to policies, procedures, and resident rights.
Before a new employee, including a temporary employee, of a facility or a community service provider receiving funds or providing services or supports pursuant to this title performs any duties, the new employee shall be oriented to the facility or community service provider and its policies, including policies and procedures concerning fire prevention, accident prevention, and response to emergencies. By the time each new employee has worked thirty days in the facility or community service provider, the new employee shall be oriented to resident rights, to the new employee's position and duties, and to facility or community service provider procedures.
Source: SL 2000, ch 131, § 14.
27B-2-28. Recommendations to Legislature and Governor.
The Department of Human Services shall consider the needs in the field of developmental disabilities and shall make recommendations to the Legislature and the Governor for changes in existing legislation.
Source: SL 2000, ch 131, § 15.
27B-2-29. Hospital survey and construction law unimpaired.
This chapter may not be construed as repealing chapter 34-7, but shall be construed separate and in addition to chapter 34-7.
Source: SL 2000, ch 131, § 16.
CHAPTER 27B-3
STATE INSTITUTIONS FOR DEVELOPMENTALLY DISABLED PERSONS
27B-3-1 27B-3-1 to 27B-3-7. Repealed by SL 2000, ch 131, § 1
27B-3-8 Acceptance and use of donations to institution--Records maintained.
27B-3-9 27B-3-9 to 27B-3-12. Repealed by SL 2000, ch 131, § 1
27B-3-13 Disposition of funds of deceased patient--County claim--Escheat to recreation fund.
27B-3-14 27B-3-14. Repealed by SL 1982, ch 16, § 46
27B-3-15 Location and name of Redfield institution--Control and supervision.
27B-3-16 Function and mission of South Dakota Developmental Center.
27B-3-17 Immunizations and tests for communicable diseases required for admission to facility--Alternatives.
27B-3-18 Tests and immunizations provided by facility.
27B-3-19 Appointment of director--Director's role.
27B-3-20 Unlawful detention of person with developmental disability.
27B-3-21 County review board may order commitment.
27B-3-22 Adults eligible for voluntary admission.
27B-3-23 Minors eligible for voluntary admission.
27B-3-24 Eligibility for voluntary admission.
27B-3-25 Comprehensive evaluation within thirty days of admission--Annual review.
27B-3-26 County auditor to be notified of admission.
27B-3-27 Liability of admittee for maintenance costs--Federal charges.
27B-3-28 Department responsible for processing fees due state.
27B-3-29 Periodic determination of individual maintenance costs.
27B-3-30 Full per diem rate charged to patient able to pay.
27B-3-31 Application to pay less than normal charges.
27B-3-32 Determination of amount to be paid by patient--Filing of grievance.
27B-3-33 Civil action for charges payable--Lien on property--Claim against decedent's estates.
27B-3-34 Limitation of actions for charges--Action during lifetime.
27B-3-35 County liable when not charged to state at large--Payments not admission of residency--Residency determination--Matching federal funds.
27B-3-36 Expenses for person with developmental disability under control of child welfare agency--Petition for guardianship.
27B-3-37 County assertion that person with developmental disability not a proper charge--Notice to file proofs--Investigation by attorney general--Notice of determination.
27B-3-38 Appeal to circuit court from attorney general's determination.
27B-3-39 Adjustment of payments by one county for residents of another.
27B-3-40 Monthly certification of charges to counties--Payments to state.
27B-3-41 Payments deposited in general fund.
27B-3-42 Transfer of resident from state facility to another--Notice before transfer--Emergency transfer.
27B-3-43 Consultation with family and interdisciplinary team before transfer to another state.
27B-3-44 Notice to voluntary resident of release procedures--Right to discharge.
27B-3-45 Temporary detention of voluntary resident--Emergency commitment procedures.
27B-3-46 Discharge of voluntarily admitted resident--Notice to parent or guardian.
27B-3-47 Return to facility of resident absent without authority.
27B-3-48 Notice to law enforcement officers of absence of resident without authority--Detention and return to facility.
27B-3-49 Secretary to be informed when no guardian or conservator of adult resident.
27B-3-50 Evaluation of competence of resident attaining adulthood.
27B-3-51 Secretary to be informed when no guardian for incompetent resident attaining adulthood.
27B-3-52 Criminal background investigation of new employees--Temporary employment--Fees.
27B-3-8. Acceptance and use of donations to institution--Records maintained.
The administrator may receive and accept from any persons, organization, or estate, gifts of money or personal property on behalf of the South Dakota Developmental Center--Redfield, or the patients therein, and use such gifts for the purposes specified by the donor if such use is consistent with the law. In the absence of a specified purpose, the administrator shall use such money or personal property for the benefit of the South Dakota Developmental Center--Redfield or for the general benefit of the patients therein. The administrator shall keep an accurate record of the amount or kind of gift, the date received, manner expended, and the name and address of the donor. Any increase resulting from such gift may be used for the same purpose as the original gift.
Source: SDC 1939, § 30.0603 as added by SL 1959, ch 175, § 2; SDCL, § 27-13-9; SL 1989, ch 238, § 12.
27B-3-13. Disposition of funds of deceased patient--County claim--Escheat to recreation fund.
If any patient of the South Dakota Developmental Center--Redfield dies leaving less than three hundred dollars in money on deposit with the administrator, such money shall be transferred by the administrator to the recreation fund of such institution. If the money on deposit is the sum of three hundred dollars or more, the administrator shall hold it for the benefit of the county legally obligated for the care of the patient for the purpose of satisfying any lien of the county against the estate of the patient.
The administrator shall give timely notice of such deposit to the county auditor and to the clerk of courts of the county and the amount of money held. If the county has waived or fails to commence proceedings on its lien, or if no proceedings for probate or administration of the estate have commenced within six months from the time of giving the notice to the clerk of courts, or if in the course of administration it is found that there are no heirs to the estate, then the amount of the deposit shall, notwithstanding § 29A-3-914, escheat to the recreation fund.
Any indebtedness, not in excess of one hundred dollars, incurred by the facility prior to the patient's death for the benefit of the patient may be paid by the facility from the deceased resident's funds on deposit with the administrator. This liability shall take precedence over the county lien.
Source: SDC 1939, § 30.0603 as added by SL 1959, ch 175, § 2; SDCL, § 27-13-12; SL 1973, ch 174, § 1; SL 1974, ch 188; SDCL Supp, § 27-14-4; SL 1975, ch 182, §§ 72, 74; SL 1981, ch 209; SL 1989, ch 238, § 14; SL 1996, ch 16, § 4.
27B-3-15. Location and name of Redfield institution--Control and supervision.
The facility located and established upon lands donated and conveyed to this state at Redfield, Spink County, shall be known as the South Dakota Developmental Center. The supports and services provided by the South Dakota Developmental Center shall be under the control and supervision of the Department of Human Services.
Source: SL 2000, ch 131, § 17.
27B-3-16. Function and mission of South Dakota Developmental Center.
The South Dakota Developmental Center shall provide supports and services for persons with developmental disabilities and other persons who may benefit from those supports and services offered by the South Dakota Developmental Center. The South Dakota Developmental Center may provide onsite and offsite additional supports and services in order to increase the self-direction of a person with a developmental disability, and to enhance a person with a developmental disability to live in the least-restrictive environment. It is the mission of the South Dakota Developmental Center to provide supports and services to persons with developmental disabilities onsite only when suitable community supports and services are not available.
Source: SL 2000, ch 131, § 18.
27B-3-17. Immunizations and tests for communicable diseases required for admission to facility--Alternatives.
Any person with a developmental disability voluntarily or involuntarily admitted to the facility shall be tested for communicable diseases as deemed necessary by a licensed physician in charge of tests and immunizations at the facility, by such means of tests and immunizations as are approved by the Department of Health or shall present:
(1) Certification from a licensed physician stating the physical condition of the person with a developmental disability would be such that a test and immunization would endanger the person's life or health;
(2) A written statement signed by a parent or guardian of the person with a developmental disability that the person is adherent to a belief whose teachings are opposed to the test and immunization;
(3) A written statement signed by a parent or guardian of the person with a developmental disability requesting that the local health department or the facility give the test and immunization because the parent or guardian lacks the means to pay for the test and immunization; or
(4) A written statement from a licensed physician requesting that the person with a developmental disability not be immunized.
Source: SL 2000, ch 131, § 19.
27B-3-18. Tests and immunizations provided by facility.
The facility shall provide to persons with developmental disabilities the required tests and the immunizations that are not provided by a parent or guardian and have not been exempted pursuant to § 27B-3-17.
Source: SL 2000, ch 131, § 20.
27B-3-19. Appointment of director--Director's role.
The secretary of the Department of Human Services shall appoint a director to act as the chief executive officer of the South Dakota Developmental Center. The director shall supervise the supports, services, and education of the persons served at the facility, under the direction of the secretary of the Department of Human Services.
Source: SL 2000, ch 131, § 21.
27B-3-20. Unlawful detention of person with developmental disability.
Any person who unlawfully detains a person with a developmental disability in any other manner or in any other place than as authorized by law is guilty of a Class 1 misdemeanor.
Source: SL 2000, ch 131, § 22.
27B-3-21. County review board may order commitment.
Any person with a developmental disability may be admitted to the South Dakota Developmental Center if the county review board orders commitment pursuant to the process provided in this title.
Source: SL 2000, ch 131, § 23.
27B-3-22. Adults eligible for voluntary admission.
Any person who is eighteen years of age or older and who has a developmental disability may be admitted to the South Dakota Developmental Center on a voluntary admission basis in accordance with procedures established by the Department of Human Services if an application for admission has been executed by the person with a developmental disability, if the person is competent to do so, or by the person's guardian.
Source: SL 2000, ch 131, § 24.
27B-3-23. Minors eligible for voluntary admission.
Any person who is under the age of eighteen years and who has a developmental disability may be admitted to the South Dakota Developmental Center on a voluntary admission basis in accordance with procedures established by the Department of Human Services if an application for admission has been executed by the person's parent, guardian, or, in the absence of a parent or guardian, a person acting as a parent in loco parentis.
Source: SL 2000, ch 131, § 25.
27B-3-24. Eligibility for voluntary admission.
If it is determined that any other person would benefit from supports and services offered at the South Dakota Developmental Center, that person may be admitted on a voluntary admission basis in accordance with procedures established by the Department of Human Services.
Source: SL 2000, ch 131, § 26.
27B-3-25. Comprehensive evaluation within thirty days of admission--Annual review.
Each person admitted to the South Dakota Developmental Center shall receive and complete a comprehensive evaluation within thirty days of admission to determine the appropriateness of continued supports and services at the facility. The appropriateness of continued supports and services shall be reviewed at least annually, or more often if requested by a team member.
Source: SL 2000, ch 131, § 27.
27B-3-26. County auditor to be notified of admission.
Upon accepting a person for admission to the South Dakota Developmental Center, the county auditor of the person's county of residence shall be notified by the facility's director.
Source: SL 2000, ch 131, § 28.
27B-3-27. Liability of admittee for maintenance costs--Federal charges.
Notwithstanding chapter 25-7, if any person is admitted to a facility, only the admittee is responsible for the cost of supports and services to the extent and in the manner provided by this chapter. If the cost of supports and services is a proper charge of the federal government, the costs shall be assessed against the appropriate agency of the federal government.
Source: SL 2000, ch 131, § 29.
27B-3-28. Department responsible for processing fees due state.
The Department of Human Services shall collect and process fees due to the state for the cost of supports and services for persons with developmental disabilities.
Source: SL 2000, ch 131, § 30.
27B-3-29. Periodic determination of individual maintenance costs.
The secretary of the Department of Human Services shall periodically determine the individual cost of supports and services provided to persons in the facility.
Source: SL 2000, ch 131, § 31.
27B-3-30. Full per diem rate charged to patient able to pay.
Any person in the facility who is determined by the secretary of the Department of Human Services to be financially able to pay shall be charged the per diem rate.
Source: SL 2000, ch 131, § 32.
27B-3-31. Application to pay less than normal charges.
Any person in the facility may apply to the secretary of the Department of Human Services to pay less than the per diem rate. On receipt of such application, the secretary shall determine the ability of the person in the facility to pay all or a part of the applicable charge.
Source: SL 2000, ch 131, § 33.
27B-3-32. Determination of amount to be paid by patient--Filing of grievance.
Upon receipt of all information desired by the secretary of the Department of Human Services, the secretary shall determine, based upon the financial ability of the person in the facility, whether the person shall be charged with the full amount or a lesser amount. If a person in the facility or county where the person in the facility resides, disagrees with the determination of the secretary of the Department of Human Services, a grievance may be filed with the secretary within thirty days from the date of such determination. However, each such grievance may not be filed more than once every six months. The decision of the secretary is final.
Source: SL 2000, ch 131, § 34.
27B-3-33. Civil action for charges payable--Lien on property--Claim against decedent's estates.
If any person in the facility refuses or fails to make such payments, the charges may be collected by a civil action brought in the name of the State of South Dakota. The state may commence an action against the person for payments due, and any judgment obtained shall be a lien upon the real property of the person and shall be collected as other judgments. Any claim arising under § 27B-3-27 has the same force and effect against the real and personal property of a deceased person as other debts of a decedent and shall be ascertained and recovered in the same manner.
Source: SL 2000, ch 131, § 35.
27B-3-34. Limitation of actions for charges--Action during lifetime.
The statute of limitations upon any claim of the state for the care of a person in the facility is three years and does not commence to run until the death of the person, but an action may be commenced at any time during the life of the person.
Source: SL 2000, ch 131, § 36.
27B-3-35. County liable when not charged to state at large--Payments not admission of residency--Residency determination--Matching federal funds.
Each county shall be assessed sixty dollars per month for each person receiving supports and services at the South Dakota Developmental Center unless the responsibility therefore has been placed upon the state. In the event of a dispute as to that person's residence, no payments made by any county constitute an admission that the person in the facility is a resident of such county.
The procedures for determining the county of residence shall be that described in §§ 27B-3-37 and 27B-3-38. These moneys shall be used to match federal funds which may be made available under the provisions of Title XIX of the Social Security Act as amended, or its successors, at the South Dakota Developmental Center.
Source: SL 2000, ch 131, § 37.
27B-3-36. Expenses for person with developmental disability under control of child welfare agency--Petition for guardianship.
If a person with a developmental disability has been placed under the control of a child welfare agency as defined by § 26-6-1 for adoption, and prior to adoption is found to have a developmental disability, then the county review board may direct that the expenses for the care, education, and maintenance of that person be borne by the state in which event no finding as to the county being legally obligated to support the person shall be made. The board shall forthwith notify the Department of Social Services who may petition for letters of guardianship. For minors in the custody of the state, the county is not legally obligated to pay for such person. Expenses for such person shall be borne by the state.
Source: SL 2000, ch 131, § 38.
27B-3-37. County assertion that person with developmental disability not a proper charge--Notice to file proofs--Investigation by attorney general--Notice of determination.
If the administrator of a facility has cared for or maintained a person with a developmental disability from a county and the state's attorney or the county commissioners of the county claim that the person is not a proper charge against the county, the state's attorney or the county commissioners shall notify the attorney general that the person in the facility is a proper charge against another county, or against the state if the person in the facility is not a resident of the state. The attorney general shall notify the county auditor of the county to file any proof within thirty days from the date of such notification. Upon receipt of such, the attorney general shall investigate the location of the residence of the person in the facility to determine if a county and which county should be charged. The attorney general shall notify the county auditor and the director of the South Dakota Developmental Center of the determination. Thereafter, the administrator shall charge for supports and services according to the determination of the attorney general.
Source: SL 2000, ch 131, § 39.
27B-3-38. Appeal to circuit court from attorney general's determination.
If any county is dissatisfied with the determination of the attorney general, the county may appeal to the circuit court.
Source: SL 2000, ch 131, § 40.
27B-3-39. Adjustment of payments by one county for residents of another.
Expenses paid by one county, on behalf of any person at the South Dakota Developmental Center whose residence is in another county, shall be refunded with lawful interest by the county of residence.
Source: SL 2000, ch 131, § 41.
27B-3-40. Monthly certification of charges to counties--Payments to state.
Any charges to a county under § 27B-3-35 shall be certified each month by the secretary of the Department of Human Services to the county auditor. The billing shall include an itemized listing of charges. The billing shall be sent to county auditors no later than the fifth day of the month. Upon receiving the billing, the county shall pay the amount due to the state remittance center within the time period established by chapter 4-3.
Source: SL 2000, ch 131, § 42.
27B-3-41. Payments deposited in general fund.
Any payments made in accordance with this chapter for the supports and services of persons at the South Dakota Developmental Center shall be deposited in the general fund.
Source: SL 2000, ch 131, § 43.
27B-3-42. Transfer of resident from state facility to another--Notice before transfer--Emergency transfer.
Any person in a state facility may be transferred to any other state or private facility if the person would benefit from the treatment offered at the facility. A transfer may only be made with the mutual consent of both facilities or agencies. No transfer may occur until all reasonable efforts have been made to consult with the person and the person's nearest relative or guardian. However, the transfer may be effected earlier if necessitated by an emergency. If an emergency situation arises, the required notice shall be given as soon as possible thereafter.
Source: SL 2000, ch 131, § 44.
27B-3-43. Consultation with family and interdisciplinary team before transfer to another state.
The Department of Human Services, upon recommendation of the person's interdisciplinary team, shall consult with the person with a developmental disability and that person's immediate family or guardian regarding any proposed transfer from a facility of this state to a facility of another state pursuant chapter 27A-6.
Source: SL 2000, ch 131, § 45.
27B-3-44. Notice to voluntary resident of release procedures--Right to discharge.
Any person voluntarily entering a facility for persons with developmental disabilities shall be given oral and written notice of release procedures upon admission. Any person voluntarily entering the facility, regardless of age, has the right to discharge within twenty-four hours after request.
Source: SL 2000, ch 131, § 46.
27B-3-45. Temporary detention of voluntary resident--Emergency commitment procedures.
A facility may temporarily detain a voluntarily admitted person with a developmental disability for twenty-four hours after the request for discharge to initiate emergency commitment procedures, pursuant to § 27B-7-38, if the person's interdisciplinary team determines that the person presents an immediate danger to self or others.
Source: SL 2000, ch 131, § 47.
27B-3-46. Discharge of voluntarily admitted resident--Notice to parent or guardian.
The director, based upon the recommendation of the person's interdisciplinary team, may at any time discharge a voluntarily admitted person. If a person with a developmental disability was voluntarily admitted by a parent or guardian, the director shall notify the parent or guardian of the discharge prior to the person's release, in accordance with 42 C.F.R. § 483.440(b)(4)(ii), as of January 1, 2023, and shall notify the parent or guardian of other supports and services available in an alternative setting.
Source: SL 2000, ch 131, § 48; SL 2023, ch 91, § 1.
27B-3-47. Return to facility of resident absent without authority.
Any person with a developmental disability admitted to the facility pursuant to this title who leaves the facility without authorization or fails to return to the facility while on an authorized leave or other authorized absence from the facility, may be returned to the facility.
Source: SL 2000, ch 131, § 49.
27B-3-48. Notice to law enforcement officers of absence of resident without authority--Detention and return to facility.
The South Dakota Developmental Center shall notify the Spink County sheriff and state radio communications of any unauthorized absence from the facility. Any law enforcement officer knowing the whereabouts of any person absent from the facility shall detain the absent person and immediately notify both the South Dakota Developmental Center and the Spink County sheriff. The South Dakota Developmental Center shall arrange for the return of the person with a developmental disability to the facility within forty- eight hours thereafter.
Source: SL 2000, ch 131, § 50.
27B-3-49. Secretary to be informed when no guardian or conservator of adult resident.
If the director of a facility determines that a person eighteen years of age or older with a developmental disability receiving services and supports from the facility requires a guardian or conservator and there is no one qualified and willing to petition for letters of guardianship or conservatorship, the director shall inform the secretary of the Department of Human Services.
Source: SL 2000, ch 131, § 51.
27B-3-50. Evaluation of competence of resident attaining adulthood.
Six months prior to the eighteenth birthday of each person with a developmental disability in the facility, the person shall be evaluated by the facility to determine whether the person is competent to execute an application for voluntary admission.
Source: SL 2000, ch 131, § 52.
27B-3-51. Secretary to be informed when no guardian for incompetent resident attaining adulthood.
If the facility determines after evaluation pursuant to § 27B-3-50, that the person with a developmental disability is not competent to execute an application for voluntary admission or that the person otherwise requires the protective services of a guardian, that person's parent, or if none, another interested person or entity shall be notified and requested to file a petition for the appointment of a guardian. If no petition is filed, the director shall inform the secretary of the Department of Human Services.
Source: SL 2000, ch 131, § 53.
27B-3-52. Criminal background investigation of new employees--Temporary employment--Fees.
Each person hired as an employee at the South Dakota Developmental Center, whose primary duties include patient care or supervision, 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 Developmental Center 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 Developmental Center 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.
Source: SL 2012, ch 29, § 4.
27B-4-1 to 27B-4-8. Repealed.
27B-4-9
County budgeting and appropriations for community service providers.
27B-4-10
Community service providers receiving funds to be approved by department.
27B-4-9. County budgeting and appropriations for community service providers.
Each county may annually budget and appropriate funds for the establishment, support, or operation of community service providers pursuant to § 27A-5-9.
Source: SL 2000, ch 131, § 54.
27B-4-10. Community service providers receiving funds to be approved by department.
Funds budgeted and appropriated under this chapter shall be used by community service providers approved by the Department of Human Services.
Source: SL 2000, ch 131, § 55.
27B-5-1 to 27B-5-18. Repealed.
27B-6-1 to 27B-6-5. Repealed.
27B-7-1 to 27B-7-23. Repealed.
27B-7-24
County review board--Composition and appointment of board--Qualifications
of members--Joint boards--Alternates.
27B-7-25
Oaths of office of board members.
27B-7-25.1
Board members immune from civil liability when acting in good faith--Exception.
27B-7-26
Board jurisdiction of commitment and safekeeping of involuntarily
committed persons--Process used in discharge of duties.
27B-7-27
Petition for board-ordered admission asserting need for immediate
intervention--Contents.
27B-7-28
Board order for examination and report on petition--Contents of report--County to be reimbursed for additional examination.
27B-7-29
Board to notify department of petition--Department to prepare report--Filing.
27B-7-30
Disclosure of information.
27B-7-31
Contents of report in § 27B-7-28.
27B-7-32
Finding of residence.
27B-7-32.1
Request to reopen hearing regarding residence.
27B-7-32.2
Appearance before board--Notice--Findings of board.
27B-7-32.3
Costs of reopened hearing--Lien against patient not permitted.
27B-7-32.4
Finding of nonresidency to be forwarded to attorney general.
27B-7-32.5
Attorney general may request reopened hearing--Notice.
27B-7-32.6
Presentation of evidence--Burden of proof--Filing of finding.
27B-7-32.7
Costs of reopened hearing--Reimbursement by county or state.
27B-7-32.8
Refund of expenses of reopened hearing.
27B-7-33
Time and place of hearing--Notice--Copies of order after hearing.
27B-7-34
Procedure governing hearings.
27B-7-35
Participation by state's attorney.
27B-7-36
Dismissal of petition if not upheld by professional report--Discharge of
subject.
27B-7-37
Order for involuntary commitment of person posing immediate danger to self
or others--Protective custody.
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.
27B-7-39
Annual review of commitment order--Provision of report--Notice of hearing--Participation at hearing--Procedures--Results of hearing.
27B-7-39.1
Rights of person during hearing--Waiver of rights--Exclusion of persons.
27B-7-39.2
Attendance of court reporter--Record of proceedings.
27B-7-39.3
Request for transcript or copy--Costs.
27B-7-40
Department to notify board of death of resident.
27B-7-41
Counsel to represent subject--Procedural rights.
27B-7-42
Payment of counsel.
27B-7-43
Liability for costs.
27B-7-44
Diagnosis of developmental disability or commitment by board does not
constitute incompetence.
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.
27B-7-46
Repealed.
27B-7-47
Right to habeas corpus.
27B-7-48
Involuntary commitment--Rules.
27B-7-49
Crime of assisting in escape of involuntarily committed person--Penalties.
27B-7-50
Discharge.
27B-7-51
Notification of discharge--Transportation.
27B-7-51.1
Discharge--Notification of discharge--Voluntary admission.
27B-7-52
Liability for costs of care of persons not provided transportation--Report of
delinquencies--Notification--Payment.
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.
27B-7-47. Right to habeas corpus.
Any person involuntarily committed by a county review board and any person confined or in any manner detained or restrained is entitled to the benefit of a writ of habeas corpus. If the court finds that the criteria in § 27B-7-37 are met, the court may authorize continued involuntary commitment. Such authorization is not a bar to the issuing of the writ the second time if it is alleged that the criteria in § 27B-7-37 are no longer met.
Source: SL 2000, ch 131, § 79.
27B-7-48. Involuntary commitment--Rules.
The secretary of the Department of Human Services may, pursuant to chapter 1-26, adopt reasonable and necessary rules pertaining to involuntary commitment.
Source: SL 2000, ch 131, § 80.
27B-7-49. Crime of assisting in escape of involuntarily committed person--Penalties.
Any state employee or any employee of an agency under contract to the State of South Dakota who knowingly and intentionally allows or assists in the escape or release of an involuntarily committed person from the South Dakota Developmental Center, through acts or omission, is guilty of a Class 6 felony. Any other person who knowingly and intentionally allows or assists in the escape or release of an involuntarily committed person from the South Dakota Developmental Center, through acts or omission, is guilty of a Class 1 misdemeanor.
The term, escape, or, release, as used in this section includes departure without lawful authority or failure to return to custody following a temporary leave granted for a specific purpose or limited period.
Source: SL 2001, ch 148, § 2.
27B-7-50. Discharge.
Any person involuntarily committed shall be discharged if, in the opinion of the director of the community service provider or facility, the person no longer meets the commitment criteria.
Source: SL 2002, ch 136, § 24.
27B-7-51. Notification of discharge--Transportation.
If a person is discharged in accordance with § 27B-7-50, the county review board, which entered the order, shall be notified. The county review board shall provide the person transportation to the person's place of residence if the person so chooses within forty-eight hours of discharge notification.
Source: SL 2002, ch 136, § 25.
27B-7-51.1. Discharge--Notification of discharge--Voluntary admission.
Any person involuntarily committed shall be discharged if the director of the South Dakota Developmental Center or the director of a developmental disability community service provider determines that the person no longer meets commitment criteria. The South Dakota Developmental Center or community service provider shall immediately notify the chair of the county review board who issued the commitment order that the person no longer meets commitment criteria and that the person is being discharged. Nothing in this section precludes any person or the person's legal representative from subsequently seeking admission to a program on a voluntary basis.
Source: SL 2004, ch 185, § 1.
27B-7-52. Liability for costs of care of persons not provided transportation--Report of delinquencies--Notification--Payment.
If the county review board fails or neglects to provide transportation to the person so discharged, as provided in § 27B-7-50, within forty-eight hours from the date of the order discharging the person and of the notice of the order, the responsible county is liable for and shall pay to the community service provider, or if a state provider then to the state, the full service cost as defined in § 27B-3-28 for the care and keeping of such persons at the program or facility, the time computed shall commence forty-eight hours after the date of such order and notice.
If the community service provider is a state provider, the program director shall report any delinquencies, and the time any person is kept beyond the forty-eight hours, giving the person's name, the county of residence, and the amount due from the responsible county for such charge to the state auditor. The state auditor shall notify the county auditor of the county to be charged. The amount due shall be paid into the state treasury as other charges for the support of the developmentally disabled.
Source: SL 2002, ch 136, § 26.
27B-8-1 to 27B-8-35. Repealed.
27B-8-36
Rights and responsibilities of person with developmental disability.
27B-8-37
Religious rights.
27B-8-38
Right to public educational services.
27B-8-39
Right of access to dental and medical care.
27B-8-40
Emergency treatment without consent--Documentation of necessity.
27B-8-41
Informed consent required for experimentation or hazardous procedure--Court authorization.
27B-8-42
Other rights not limited by receipt of services--Certain practices prohibited.
27B-8-43
Retaliation against whistle-blower forbidden--Definition.
27B-8-44
Certain conduct as misdemeanor.
27B-8-45
Rights of persons receiving services.
27B-8-46
Records confidential--Disclosure.
27B-8-47
Disclosure of information to certain persons.
27B-8-48
Identity of person to be protected.
27B-8-49
Further disclosure of information.
27B-8-50
Aversive behavioral intervention techniques--Findings.
27B-8-51
Use of aversive intervention techniques prohibited.
27B-8-52
Restriction or suspension of rights only after due process.
27B-8-53
Use of restraints.
27B-8-54
Behavior intervention programs--Prerequisites to implementation.
27B-8-55
Highly restrictive procedures--Limitations on use.
27B-8-56
Time-out rooms.
27B-8-36. Rights and responsibilities of person with developmental disability.
Unless modified by court order, a person with a developmental disability has the same legal rights and responsibilities guaranteed to all other persons under the federal and state constitutions and federal and state laws .
Source: SL 2000, ch 131, § 81.
27B-8-37. Religious rights.
No person with a developmental disability may be required to perform any act or is subject to any procedure which is contrary to the person's religious beliefs, and each person has the right to practice personal religious beliefs and to be accorded the opportunity for religious worship. No person may be coerced into engaging in or refraining from any religious activity, practice, or belief.
Source: SL 2000, ch 131, § 82.
27B-8-38. Right to public educational services.
Any person with a developmental disability has the right to receive publicly supported educational services in accordance with federal and state education laws.
Source: SL 2000, ch 131, § 83.
27B-8-39. Right of access to dental and medical care.
Any person with a developmental disability has the right to access to appropriate dental and medical care and treatment for any physical ailments and for the prevention of illness or disability.
Source: SL 2000, ch 131, § 84.
27B-8-40. Emergency treatment without consent--Documentation of necessity.
Surgery and any other medical procedures may be performed without consent or court order only if the life of the person with a developmental disability is threatened and there is not time to obtain consent or a court order. Documentation of the necessity for the surgery shall be entered into the record of the person as soon as practicable.
Source: SL 2000, ch 131, § 85.
27B-8-41. Informed consent required for experimentation or hazardous procedure--Court authorization.
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 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.
Source: SL 2000, ch 131, § 86; SL 2013, ch 125, § 11.
27B-8-42. Other rights not limited by receipt of services--Certain practices prohibited.
The receipt of services and supports pursuant to this chapter does not operate to deprive any person with a developmental disability of any other rights, benefits, or privileges, does not cause the person with a developmental disability to be declared legally incompetent, and may not be construed to interfere with the rights and privileges of parents or guardians regarding the minor child. No agency, community service provider, facility, school, or person who receives public funds and provides services to persons with developmental disabilities may engage in the following practices:
(1) Corporal punishment--physical or verbal abuse, such as shaking, screaming, swearing, name calling, or any other activity that would be damaging to a person's physical well-being or self-respect;
(2) Seclusion--placement of a person alone in a room or other area from which egress is prevented except if utilized by the South Dakota Developmental Center or a community support provider in accordance with §§ 27B-8-52, 27B-8-54, and 27B-8-56;
(3) Denial of food--preventing a person from having access to a nutritionally adequate diet as a means of modifying behavior. Persons enrolled in residential programs or living units are expected to partake in meals at a predetermined scheduled time.
No person with a developmental disability receiving services may discipline other persons with developmental disabilities receiving services, and no community service provider or facility may mistreat, exploit, neglect, or abuse any person with a developmental disability.
Source: SL 2000, ch 131, § 87; SL 2009, ch 139, § 1.
27B-8-43. Retaliation against whistle-blower forbidden--Definition.
No agency, community service provider, facility, or school may retaliate against any staff who reports in good faith suspected abuse, neglect, or exploitation, or against any person with a developmental disability with respect to any report. An alleged perpetrator cannot self-report solely for the purpose of claiming retaliation. There is a rebuttable presumption of retaliation for any adverse actions taken within ninety days of a report of abuse, neglect, or exploitation.
Adverse action means only those adverse actions arising solely from the filing of an abuse report. For the purposes of this chapter, adverse action means any action taken by a community service provider or facility against the person making the report or against the person with a developmental disability because of the report and includes:
(1) Discharge or transfer from the community service provider or facility except for clinical reasons;
(2) Discharge from or termination of employment;
(3) Demotion or reduction in remuneration for services; or
(4) Restriction or prohibition of access to services and supports or the persons served.
Source: SL 2000, ch 131, § 88.
27B-8-44. Certain conduct as misdemeanor.
Any person who knowingly engages in conduct with the intent to deprive persons with developmental disabilities of any right as set forth in this title is guilty of a Class 1 misdemeanor.
Source: SL 2000, ch 131, § 89.
27B-8-45. Rights of persons receiving services.
Any person with a developmental disability receiving services has the right to:
(1) Communicate freely and privately with others of the person's own choosing;
(2) Receive and send sealed, unopened correspondence. No person's incoming or outgoing correspondence shall be opened, delayed, held, or censored by any person;
(3) Receive and send packages. No person's outgoing packages may be opened, delayed, held, or censored by any person;
(4) Reasonable access to telephones, both to make and to receive calls in privacy, and reasonable and frequent opportunities to meet with visitors; and
(5) Suitable opportunities for interaction with others of the person's own choosing.
Source: SL 2000, ch 131, § 90.
27B-8-46. Records confidential--Disclosure.
All records kept pursuant to this chapter are confidential and not open to public inspection. The information may be disclosed only in the circumstances and under the conditions set forth in §§ 27B-8-47 to 27B-8-49, inclusive.
Source: SL 2000, ch 131, § 91.
27B-8-47. Disclosure of information to certain persons.
If the community service provider or facility and the person with a developmental disability and the person's parent, if a minor, or the person's guardian consent, information may be disclosed to providers of supports and services to the person with a developmental disability, or to the person with a developmental disability, or to any other person or agency, if, in the judgment of the community service provider or facility, the disclosure would not be detrimental to the person with a developmental disability.
Source: SL 2000, ch 131, § 92.
27B-8-48. Identity of person to be protected.
If information is disclosed, the identity of the person to whom it pertains shall be protected and may not be disclosed unless it is germane to the authorized purpose for which disclosure was sought. If practicable, no other information may be disclosed unless it is germane to the authorized purpose for which disclosure was made.
Source: SL 2000, ch 131, § 93.
27B-8-49. Further disclosure of information.
Any person receiving information made confidential by § 27B-8-47 shall disclose the information to others only to the extent consistent with the authorized purpose for which the information was released.
Source: SL 2000, ch 131, § 94.
27B-8-50. Aversive behavioral intervention techniques--Findings.
The Legislature hereby finds that:
(1) Research does not support the long-term efficacy of aversive behavioral intervention;
(2) The use of aversive or abusive treatment raises disturbing legal and ethical issues, and may well deprive the recipient of constitutional or statutory rights and be outside the ethical guidelines imposed upon the treatment professional;
(3) Any person with a disability has the same right to be treated with dignity and respect as any other citizen; and
(4) The use of aversive and abusive treatments on any person with a disability diminishes the dignity and humanity of the treatment professional and the person with a disability.
The Legislature opposes any treatment or practice which violates the right to freedom from harm. The Legislature promotes activities that lead to implementation and dissemination of positive intervention alternatives.
Source: SL 2000, ch 131, § 95.
27B-8-51. Use of aversive intervention techniques prohibited.
No person may use aversive intervention techniques on a person with a developmental disability.
Source: SL 2000, ch 131, § 96.
27B-8-52. Restriction or suspension of rights only after due process.
The rights of any person with a developmental disability receiving services may only be restricted as a result of due process in accordance with statute and the rules of the Department of Human Services. The rights of any person with a developmental disability as specified in this chapter may be suspended to protect that person from endangering self or others. In order to provide specific services or supports to the person with a developmental disability, such rights may be suspended only by due process that will promote the least restriction on the person's rights.
Source: SL 2000, ch 131, § 97.
27B-8-53. Use of restraints.
Use of restraints may be applied only if a person with a developmental disability exhibits destructive behavior and if alternative techniques including positive behavior intervention techniques have failed.
Source: SL 2000, ch 131, § 98.
27B-8-54. Behavior intervention programs--Prerequisites to implementation.
Any behavior intervention program shall use, develop, and promote positive, respectful approaches for teaching in every aspect of life.
Behavior intervention programs may only be implemented following the completion of a comprehensive functional analysis if alternative nonrestrictive procedures have been proven to be ineffective, and only with the informed consent of the person with a developmental disability, if eighteen years of age or over and capable of giving informed consent, or the person's parent or legal guardian. Behavior intervention programs shall be developed in conjunction with the interdisciplinary team and implemented in accordance with § 27B-8-52.
Source: SL 2000, ch 131, §§ 99, 100.
27B-8-55. Highly restrictive procedures--Limitations on use.
The use of any highly restrictive procedures, including restraints and time-out, shall be described in written behavior intervention programs. Use of restraints shall be applied only in an emergency if alternative techniques have failed. Physical restraint intended to restrict the movement or normal functioning of a portion of a person's body through direct contact by staff, shall be employed only if necessary to protect the person with a developmental disability from immediate injury to self or others. No physical restraint may be employed as punishment, for the convenience of staff, or as a substitute for a program of services and supports. Physical restraint shall be applied only after alternative techniques have failed and only if such restraint is imposed in the least possible restriction consistent with its purpose. Mechanical restraint using mechanical devices intended to restrict the movement or normal functioning of a portion of a person's body is subject to special review and oversight, as defined in rules promulgated pursuant to chapter 1-26. Any mechanical restraint shall be designed and used so as not to cause physical injury to the person with a developmental disability and so as to cause the least possible discomfort. No chemical restraint and medication may be used excessively, as punishment, for the convenience of staff, as a substitute for a program, or in quantities that interfere with a person's developmental program. In accordance with statute and the rules promulgated pursuant to chapter 1-26, due process shall be assured pursuant to § 27B-8-52 for the use of physical, mechanical, or chemical restraints, including their use in an emergency or on a continuing basis.
Source: SL 2000, ch 131, § 101.
27B-8-56. Time-out rooms.
Time-out rooms used for separating a person with a developmental disability from other persons receiving services and group activities may be employed only under close and direct staff supervision and only as a technique in behavior intervention programs. No time-out room may be used in an emergency situation. Behavior intervention programs utilizing a time-out procedure may be implemented only if it incorporates a positive approach designed to result in the acquisition of appropriate behavior.
Source: SL 2000, ch 131, § 102; SL 2002, ch 136, § 27.
27B-9-1 to 27B-9-28. Repealed.
CHAPTER 27B-10
CIVIL COMMITMENT FOLLOWING DISMISSAL OF FELONY SEX OFFENSE CHARGE
27B-10-1 Not competent to proceed--Persons with developmental disability--Felony sexual offense dismissed--Civil commitment authorized.
27B-10-2 Not competent to proceed--Persons with developmental disability--Felony sexual offense dismissed--Petition to commit after dismissal.
27B-10-3 Petition to commit--Mental evaluation--Report--Additional examination and report permitted.
27B-10-4 Evaluation report contents--Finding--Commitment hearing--Dismissal.
27B-10-5 Commitment hearing--Rights--Limited attendance.
27B-10-6 Sheriff and witness fees.
27B-10-7 Commitment hearing--Civil procedure--Judicial authority.
27B-10-8 Commitment hearing--Court determinations--Order.
27B-10-9 Commitment order--Annual review--Report--Review hearing--Order.
27B-10-10 Review hearing--Rights.
27B-10-11 Service provider director--Authority to discharge--Basis--Notice--Applicability.
27B-10-12 Assisting in escape--Violation.
27B-10-13 Rights--Person committed--Department.
27B-10-1. Not competent to proceed--Persons with developmental disability--Felony sexual offense dismissed--Civil commitment authorized.
Any person with a felony sexual offense charge that has been dismissed pursuant to § 23A-10A-14, due to a developmental disability as defined in § 27B-1-18, is subject to civil commitment proceedings in accordance with this chapter.
Source: SL 2023, ch 92, § 1.
27B-10-2. Not competent to proceed--Persons with developmental disability--Felony sexual offense dismissed--Petition to commit after dismissal.
The state's attorney prosecuting any felony sexual offense, which charge was dismissed pursuant to § 23A-10A-14 due to a developmental disability as defined in § 27B-1-18, may, within thirty days after the dismissal, file a petition for civil commitment of the person charged in the circuit court that dismissed the charge. The petition must allege the criteria for commitment, as set forth in § 27B-10-8, and must include facts supporting the allegations.
Source: SL 2023, ch 92, § 2.
27B-10-3. Petition to commit--Mental evaluation--Report--Additional examination and report permitted.
Within ten days of the filing of a petition for civil commitment pursuant to this chapter, the court shall appoint and order a licensed psychologist or psychiatrist to conduct a psychiatric or psychological evaluation of the person whose condition is the subject of the petition. The licensed psychologist or psychiatrist shall conduct the examination and prepare a report within fifteen days of receipt of the written notice from the court. The report must contain the information set forth in § 27B-10-4. The person has the right to obtain an additional examination paid for by the county in which the action is venued. Any report from an additional examination may be placed in evidence. The person must reimburse the county for the reasonable expense of the additional examination, unless the person is indigent. The county may file a lien for the cost of the additional examination and report upon the person's real and personal property.
Source: SL 2023, ch 92, § 3.
27B-10-4. Evaluation report contents--Finding--Commitment hearing--Dismissal.
The court-ordered report required under § 27B-10-3 must contain:
(1) Any report submitted to the court as part of a mental competency proceeding under chapter 23A-10A;
(2) An evaluation of the person's mental, physical, and emotional status, and a review of the person's social and educational history;
(3) Any other information the examiner believes to be relevant;
(4) Whether the person's developmental disability, having rendered the person incompetent to proceed under chapter 23A-10A, makes it:
(a) Seriously difficult for the person to control their behavior;
(b) Likely that the person will commit other sexual offenses; and
(c) Necessary or advisable for the person to receive appropriate supports or services, or the person needs and is likely to benefit from treatment; and
(5) Whether the person is a danger to themselves or others due to the developmental disability that rendered the person incompetent to proceed under chapter 23A-10A.
If any report submitted to the court indicates that the person has serious difficulty controlling their behavior and is likely to commit other sexual offenses, the court must hold a hearing to determine whether the person is to be involuntarily committed. If no report submitted to the court indicates that the person has serious difficulty controlling their behavior and is likely to commit other sexual offenses, the petition must be dismissed.
Source: SL 2023, ch 92, § 4.
27B-10-5. Commitment hearing--Rights--Limited attendance.
At a hearing ordered pursuant to § 27B-10-4, the person whose condition is the subject of the hearing shall be represented by counsel and, if the person is financially unable to obtain adequate representation, the court must appoint counsel for the person. The person has the right to appear personally, to subpoena witnesses on the person's behalf, to confront and cross-examine witnesses, and to present evidence. The person has the right to testify but may not be compelled to testify. If the person chooses not to appear, the person's attorney must 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 is not required. If the person is receiving treatment at the time of hearing, the person’s provider must take all reasonable precautions to ensure that, at the time of the hearing, the person is not so under the influence of, or so affected by, drugs, medication, or other treatment or interventions, as to be hampered in preparing for or participating in the hearing. The court 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 2023, ch 92, § 5.
27B-10-6. Sheriff and witness fees.
In proceedings under this chapter, the sheriff is allowed the same fee as for like services in other cases. Any witness is allowed the same fees as a witness in other cases.
Source: SL 2023, ch 92, § 6.
27B-10-7. Commitment hearing--Civil procedure--Judicial authority.
The sections of title 15 relating to civil practice and procedure in the circuit courts shall apply to any hearing pursuant to this chapter. If not otherwise submitted during the hearing, the court may take judicial notice of any other case against the person whose condition is the subject of the hearing, involving sexual offenses, and may order any additional appropriate examination or investigation.
Source: SL 2023, ch 92, § 7.
27B-10-8. Commitment hearing--Court determinations--Order.
At a hearing ordered pursuant to § 27B-10-4, the court shall determine whether there is clear and convincing evidence that:
(1) The person committed one or more felony sexual offenses;
(2) The person's developmental disability, having rendered the person incompetent to proceed under chapter 23A-10A, makes it:
(a) Seriously difficult for the person to control their behavior;
(b) Likely that the person will commit other sexual offenses; and
(c) Necessary or advisable for the person to receive appropriate supports or services, or the person needs and is likely to benefit from treatment; and
(3) Whether the person is a danger to themselves or others due to the developmental disability that rendered the person incompetent to proceed under chapter 23A-10A.
If the court, through written findings of fact and conclusions of law, finds all the above criteria are met, the court must issue an order involuntarily committing the person to the Department of Human Services for appropriate placement. If the person refuses to comply with this order, the court may direct law enforcement to take the person into protective custody.
Source: SL 2023, ch 92, § 8.
27B-10-9. Commitment order--Annual review--Report--Review hearing--Order.
The court shall review any commitment order entered pursuant to § 27B-10-8 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 facility providing services to the person shall report to the committing court regarding the person's supports, services, or treatment and progress. If the facility is separate from the Department of Human Services, the report must also be served on the department. Following ten days' notice to the person, the person’s attorney, the department, and the facility providing services to the person if separate from the department, the court shall hold a review hearing. The review hearing must include participation by the state's attorney, the department, the facility providing services to the person if separate from the department, and the person's attorney. The rights and procedures applicable during an initial commitment hearing are applicable to a review hearing. A petition pursuant to § 27B-10-3 need not be filed. At the conclusion of the review hearing, the court may issue an order of continued commitment or immediately discharge the person from involuntary commitment if the conditions in § 27B-10-8 justifying commitment no longer exist.
Source: SL 2023, ch 92, § 9.
27B-10-10. Review hearing--Rights.
The person shall have the same rights and privileges during a review hearing as established under § 27B-10-5.
Source: SL 2023, ch 92, § 10.
27B-10-11. Service provider director--Authority to discharge--Basis--Notice--Applicability.
The director of the South Dakota Developmental Center, or the director of any other developmental disability community service provider, as applicable, shall discharge any involuntarily committed person if the director determines that the person no longer meets the commitment criteria under § 27B-10-8. The director of the discharging entity shall immediately notify the court who issued the commitment order and the state’s attorney who filed the commitment proceeding that the person no longer meets commitment criteria and is being discharged. Nothing in this section precludes any person or the person’s legal representative from subsequently seeking admission to a program on a voluntary basis.
Source: SL 2023, ch 92, § 11.
27B-10-12. Assisting in escape--Violation.
The provisions of § 27B-7-49 apply to commitments under this chapter.
Source: SL 2023, ch 92, § 12.
27B-10-13. Rights--Person committed--Department.
Any other right, responsibility, or authority given to a person committed or the Department of Human Services under this title is applicable to a person committed under this chapter.
Source: SL 2023, ch 92, § 13.