Nursing homes, hemp, presumptive probation among hot topics in South Dakota's 2019 legislative session
PIERRE, S.D. — In a rush before severe winter weather conditions swept across the state, the Legislature wrapped up the 2019 legislative session a day early, staying until nearly 3 a.m. on Wednesday, March 13, to vote on the state’s final $4.9 billion budget.
Over the course of the body’s 40 working days, debates ranged in topic from abortion access, to early childhood education, to the epidemic of missing and murdered indigenous women, and everything in between.
A historic session — marking the first of Republican Gov. Kristi Noem, the state’s first female governor — here are some of the policy highlights:
Referred to throughout session as the most vital question plaguing lawmakers, the state’s nursing home crisis was addressed in the state’s final budget passed by the Legislature early Wednesday morning.
Nursing homes, particularly in communities with high Medicaid utilization, have felt the brunt of the state’s notoriously low Medicaid reimbursement rate for years. South Dakota's reimbursement rate is the lowest in the country — $146 per day — even though the average daily cost to house a nursing home patient is $181 per day.
Thus, for years, for every Medicaid patient, a long-term care facility lost money. South Dakota Health Care Association Director Mark Deak said in a Feb. 26 committee hearing that annually, unreimbursed costs add up to $66 million across the state.
With nursing homes across the state shutting down due to economic struggles, lawmakers said they looked to long-term funding solutions for the answer. The Legislature passed in its final budget a 10 percent boost in the Medicaid reimbursement rate to nursing homes, starting April 1.
Lawmakers also passed a one-time appropriation of $5 million to partner providers to identify potential alternative care options, as proposed by Noem in her January budget address.
The question of whether to legalize industrial hemp growth and production in the state became a heated debate between the majority of legislators and Noem’s administration, which aggressively fought House Bill 1191 from its start.
The bill ultimately cleared all of the legislative hurdles necessary, passing through committee hearings and the House with overwhelming support, then experiencing a near-miss in the Senate thanks to a saving grace amendment.
The debate hit a fever pitch just hours after the Legislature passed HB 1191 when Noem vetoed the bill. She cited concerns with law enforcement, given the crop’s relation to marijuana. The plants are related but not the same, and hemp is not a drug.
Noem also said she is concerned about hemp-derived cannabadiol, or CBD oil, and said the state should wait to legalize hemp until federal guidelines from the U.S. Department of Agriculture and Food and Drug Administration emerge.
Noem’s veto was met with scrutiny from lawmakers and stakeholders, but an attempt to override her veto died in the Senate. With South Dakota’s number one industry being agriculture and farmers struggling amidst low commodity prices and a staggering market, South Dakota Farmers Union President Doug Sombke called Noem’s veto a "crushing defeat for farmers and ranchers.”
Over 40 other states have already legalized hemp growth and production. The crop is also legal on the federal level thanks to the 2018 farm bill.
Throughout the 40-day session, the conversation on transgender rights ebbed and flowed in the Capitol. A bill that would have required transgender high school athletes to compete according to their “birth sex,” as proven by their birth certificate or a medical exam, died early in the session, but was resurrected before ultimately failing in the House with a tied vote.
Opponents called the legislation discriminatory, saying it violated Title IX protections and the Constitution’s Equal Protection Clause, and targeted an already vulnerable minority. Proponents said the bill was simply about “fair competition” in high school sports.
The conversation didn’t stop there. Lawmakers also debated a bill that would have prohibited public school teachers of grades kindergarten through seventh from instructing on gender dysphoria. As defined by the American Psychiatric Association, gender dysphoria “involves a conflict between a person's physical or assigned gender and the gender with which he/she/they identify.”
Another bill, killed early in the legislative process by the House Health and Human Services committee, would have established a parent’s right to refuse transitional health care treatment to his or her transgender child.
Proponents said the bill wasn’t meant to discriminate, but to solidify parental rights. Opponents said the bill would have allowed parents to refuse not just physical health care to their children — like hormone therapy or transitional surgery — but also mental health care and therapy.
Ultimately, all of the bills surrounding transgender youth rights failed to pass.
Prior to the start of session, one of the most hotly anticipated debates to be taken up was whether to repeal presumptive probation, which requires judges to sentence low-level felony offenders to probation rather than prison.
The policy only applies to Class 5 and 6 felonies, such as drug use and ingestion. If a judge finds that an offender poses a significant risk to the public, he or she can bypass the rule and sentence the offender to prison time.
Repealing presumptive probation was one of Attorney General Jason Ravnsborg’s key policy proposals during his 2018 campaign for election. He said it takes power away from law enforcement and judges, and allows for offenders to get away with too little consequence.
But opponents of Ravnsborg’s idea to repeal contended that imprisoning the low-level offenders that are currently put on probation would be too costly to the state — about $4 million per year just in housing costs — and overwhelm the state’s already congested criminal justice system. And what low-level drug offenders need more than prison time is a chance to recover, they said.
The Senate ultimately killed the bill by a 18-12 vote on Feb. 22.
Proponents of gun rights won big early in the legislative session with the swift passage of Senate Bill 47, allowing for permitless concealed carry in the state. SB 47 became the first signed bill of the session on Jan. 31, and the first of Noem’s career as governor.
Current state law does not require a permit to open carry, but does to concealed carry. Proponents of the bill said that a gun owner could be legally open carrying, but upon putting on a jacket or putting their pistol in a bag, inadvertently break the law. SB 47, they said, prevents that from happening.
Though a permit would not be required to concealed carry in the state, South Dakotans could still obtain a permit in order to take advantage of reciprocity agreements in other states.
Both the South Dakota’s Sheriff’s Association and State’s Attorneys Association opposed the bill, saying it allows out-of-state residents to enter South Dakota and carry concealed weapons without law enforcement’s knowledge.
The Legislature also passed Senate Bill 115, which would allow enhanced carry permit holders and qualified law enforcement officers to carry pistols on the state’s Capitol grounds in Pierre. The bill passed after a different Capitol carry bill with looser restrictions, Senate Bill 50, failed early in the session.
Noem still has not signed SB 115. Spokeswoman Kristin Wileman said Thursday that Noem “and her team are reviewing the final version of the legislation” and that “she’ll make a decision in the coming days.”
Former-Gov. Dennis Daugaard, a Republican, previously vetoed Capitol carry legislation.