Changes to Existing Law

26.607.25 26.607.26 101st Legislative Session 1138 2026 South Dakota Legislature House Bill 1138 HOUSE HEALTH AND HUMAN SERVICES ENGROSSED Introduced by: Representative Heermann Underscores indicate new language. Overstrikes indicate deleted language. An Act to require the licensure of non-medical home care agencies, and to provide 1 a penalty therefor. 2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 3 Section 1. That a NEW SECTION be added to a NEW CHAPTER in title 34: 4 Terms defined in this chapter mean: 5 (1) "Client," an individual who receives non-medical home care services from a home 6 care aide; 7 (2) "Department," the Department of Health; 8 (3) "Home care aide," an individual employed by or under contract with a non-medical 9 home care agency to provide non-medical home care services; 10 (4) "Non-medical home care agency," a person that, for consideration, that as a regular part of a business, 11 provides, or employs or 11 contracts with home care aides to provide provide, non-medical 12 home care services 12 intended to enable a client to remain safely in the client's 13 personal residence; and 13 14 (5) "Non-medical home care services," the following, when provided by a home care 14 15 aide to a client in the client's personal residence: 15 client: 16 (a) Assistance with bathing, dressing, eating, personal grooming, or toileting; 16 17 (b) Assistance with the self-administration of medications; 17 18 (c) Companionship; 18 19 (d) Housekeeping or assistance with household chores; 19 20 (e) Meal preparation; 21 (f) Transportation; or 20 (f) 22 (g) Other routine activities of daily living that are not required to be performed 21 23 by a licensed health care professional. 22 24 Section 2. That a NEW SECTION be added to a NEW CHAPTER in title 34: 23 25 26.607.26 2 1138 Underscores indicate new language. Overstrikes indicate deleted language. A non-medical home care agency may not operate in this state unless the agency 24 1 is licensed by the department. 25 26.607.25 2 1138 Underscores indicate new language. Overstrikes indicate deleted language. Any person who operates, claims to operate, or advertises as operating, a non-1 non-3 medical home care agency without a license is guilty of a Class 1 misdemeanor. 2 4 Section 3. That a NEW SECTION be added to a NEW CHAPTER in title 34: 3 5 To obtain or renew a license to operate a non-medical home care agency, a person 4 6 shall submit to the department: 5 7 (1) An application, developed by the department; 6 8 (2) A fee, established by the department in rules promulgated in accordance with 7 9 chapter 1-26, but not exceeding one hundred dollars; 8 10 (3) The name and contact information of the agency's owner; and 9 11 (4) An attestation that: 10 12 (a) Any home care aides employed by or under contract with the agency have 11 13 completed training in accordance with section 4 of this Act; and 12 14 (b) The owner of the agency and any home care aides employed by or under 13 15 contract with the agency have submitted to and passed a criminal history 14 16 background check, in accordance with section 5 of this Act; and 17 (5) Proof of professional liability insurance, as required by section 7 of this Act. 15 18 A license issued in accordance with this section is valid for one year from the date 16 19 of issuance. 17 A licensee may apply for renewal beginning thirty days before the expiration 20 of the license. If the renewal application is submitted within thirty days after the expiration 21 of the license, the department must assess a two-hundred-dollar late fee and may 22 reinstate the expired license. 23 Any fee submitted under this section is nonrefundable. 18 24 Section 4. That a NEW SECTION be added to a NEW CHAPTER in title 34: 19 25 A non-medical home care agency must ensure that any home care aide employed 20 26 by or under contract with the agency has completed at least ten eight hours of training on the 21 27 provision of non-medical home care services. The training must comprise of: 22 28 (1) At least two hours on basic care for individuals living with Alzheimer's and 23 29 dementia; and 24 30 (2) At least eight six hours on: 25 31 (a) The maintenance of a clean and safe environment; 26 32 26.607.26 3 1138 Underscores indicate new language. Overstrikes indicate deleted language. (b) Safe techniques for assisting with bathing, dressing, personal grooming, 27 1 and toileting; 28 2 (c) Basic nutrition, meal preparation, food safety, and eating assistance; 29 3 (d) Client confidentiality, privacy, and documentation and record requirements; 30 4 and 31 5 (e) Elder abuse, neglect, and exploitation reporting and prevention. 32 26.607.25 3 1138 Underscores indicate new language. Overstrikes indicate deleted language. 6 The agency shall maintain, for each home care aide, documentation of the 1 7 completion of the training, and shall provide the documentation to the department, upon 2 8 request. 3 9 A home care aide who is licensed, certified, or registered as a health care 4 10 professional, in accordance with title 36, satisfies the training requirements of this section 5 11 if the professional provides documentation to the agency demonstrating training in the 6 12 topics set forth above, as part of the process for obtaining or renewing licensure, 7 13 certification, or registration. 8 14 Section 5. That a NEW SECTION be added to a NEW CHAPTER in title 34: 9 Before employing or contracting with a home care aide, the 15 A non-medical home care 10 agency shall require the prospective employee every employed or contractor contracted home 16 care aide to submit to a criminal history 11 background check in accordance with procedures 17 established by the department. 12 18 Neither the owner of an agency, nor any home care aides employed by or 13 19 contracted with the agency, may have been convicted of, or pled guilty or nolo contendere 14 20 to, the following crimes in this state or a comparable crime in another state: 15 21 (1) A crime of violence, as defined by § 22-1-2; 16 22 (2) A sex crime listed in § 22-24B-1, or another crime under chapters 22-22, 22-22A, 17 23 or 22-24A; or 18 24 (3) A Class A or B felony. 19 25 A non-medical home care agency may employ or contract with a home care aide 26 on a temporary basis pending the receipt of the criminal history background check. The 27 non-medical home care agency may, without liability, terminate a home care aide's 28 employment or contract if the background check reveals a disqualifying record. 29 The agency may not disseminate any information obtained under this section to a 20 30 person not employed by the agency. 21 31 Section 6. That a NEW SECTION be added to a NEW CHAPTER in title 34: 22 32 26.607.26 4 1138 Underscores indicate new language. Overstrikes indicate deleted language. A non-medical home care agency shall maintain records documenting the type and 23 1 frequency of services provided to each client and shall provide client records to the 24 2 department upon request. 25 3 Client records and any personally identifiable information regarding a client are 26 4 confidential and may be disclosed only as permitted by law or as authorized by the client 27 5 or the client's designee. 28 6 Section 7. That a NEW SECTION be added to a NEW CHAPTER in title 34: 29 The department may inspect a added: 7 A non-medical home care agency, during business 30 hours, for compliance agency shall carry professional liability insurance 8 coverage, from a company that holds a certificate of authority from the Division of 9 Insurance, with this chapter. The department may audit an agency. 31 26.607.25 4 1138 Underscores indicate new language. Overstrikes indicate deleted language. The department shall investigate any complaint alleging a violation limits of this chapter 1 or rules promulgated thereunder in the same manner as chapter 36-1C. 2 no less than two hundred fifty thousand dollars per occurrence. 10 Section 8. That a NEW SECTION be added to a NEW CHAPTER in title 34: 3 11 The department may inspect or audit a non-medical home care agency, during 12 business hours, for compliance with this chapter, based on reasonable cause. The 13 department shall provide notice to the non-medical home care agency before conducting 14 an inspection or audit. 15 The department shall investigate any complaint alleging a violation of this chapter 16 or rules promulgated thereunder in the same manner as chapter 36-1C. 17 Section 9. That a NEW SECTION be added to a NEW CHAPTER in title 34: 18 The department may, in accordance with chapter 1-26, deny the issuance or 4 19 renewal of, or may suspend or revoke, a license issued under this chapter, for a violation 5 20 of any provision of this chapter or rules promulgated thereunder. 6 21 Any party aggrieved by any act, ruling, or decision of the department may appeal 7 22 the act, ruling, or decision under the provisions of chapter 1-26. 8 Section 9. That a NEW SECTION be added to a NEW CHAPTER in title 34: 9 The department shall promulgate rules, in accordance with chapter 1-26, to 10 establish: 11 (1) The application process for licensure as a non-medical home care agency; 12 (2) Home care aide training program standards necessary to protect the health and 13 safety of clients; 14 (3) Record keeping requirements for agencies; and 15 (4) Procedures for the completion of criminal history background checks for 16 prospective agency employees or contractors. 17 23 Section 10. That a NEW SECTION be added to a NEW CHAPTER in title 34: 18 There is created 24 The department shall promulgate rules, in the state treasury the accordance with chapter 1-26, to 25 establish: 26 (1) The application process for licensure as a non-medical home care agency; 27 (2) Home care aide training program standards necessary to protect the health and 28 safety of clients; 29 (3) Record keeping requirements for agencies; and 30 26.607.26 5 1138 Underscores indicate new language. Overstrikes indicate deleted language. (4) Procedures for the completion of criminal history background checks for 1 prospective agency regulatory 19 fund. The fund consists of all fees imposed pursuant to this chapter. 20 The department shall administer the fund. The purpose of the fund is to defray 21 expenses associated with administering this chapter. Interest on moneys credited to the 22 fund must be deposited into the fund. Expenditures from the fund must be budgeted 23 through the general appropriation bill. 24 employees or contractors. 2 Section 11. That a NEW SECTION be added to a NEW CHAPTER in title 34: 25 This chapter does not apply to: 26 (1) A home health agency certified by 3 There is created in the Centers for Medicare and Medicaid Services; 27 (2) A health care facility licensed in accordance with chapter 34-12; 28 (3) A residential care facility registered in accordance with chapter 34-12; 29 (4) A community services provider or a community support provider; 30 26.607.25 5 1138 Underscores indicate new language. Overstrikes indicate deleted language. (5) Any person who provides services under a medicaid waiver program administered 1 by state treasury the Department of Human Services; 2 (6) A health care professional, licensed in accordance with title 36, who provides non-3 medical home cares services in conjunction with health care services in an 4 individual's personal residence; 5 (7) A person who coordinates, refers, or matches a non-medical home care agency regulatory 4 fund. The fund consists of all fees imposed pursuant to this chapter. 5 The department shall administer the fund. The purpose of the fund is to defray 6 a potential client, but who does not employ or contract expenses associated with any home care aides; administering this chapter. Interest on moneys credited to the 7 or fund must be deposited into the fund. Expenditures from the fund must be budgeted 8 (8) An individual who provides care to another family member. through the general appropriation bill. 9 Section 12. That a NEW SECTION be added to a NEW CHAPTER in title 34: 10 This chapter does not apply to: 11 (1) A home health agency certified by the Centers for Medicare and Medicaid Services; 12 (2) A health care facility licensed in accordance with chapter 34-12; 13 (3) A residential care facility registered in accordance with chapter 34-12; 14 (4) A community services provider or a community support provider; 15 (5) A health care professional, licensed in accordance with title 36, who provides non-16 medical home cares services in conjunction with health care services in an 17 individual's personal residence; 18 (6) A person who coordinates, refers, or matches a non-medical home care agency to 19 a potential client, but who does not employ or contract with any home care aides; 20 or 21 (7) An individual who provides care to another family member. 22 Section 13. That a NEW SECTION be added to a NEW CHAPTER in title 34: 23 Nothing in this chapter authorizes a non-medical home care agency to provide or 11 coordinate 24 services that are required to be provided by a licensed health care professional. 12 25 Section 13. 14. This Act is effective beginning January 1, 2027. 13 26

26.607.26 26.607.27 101st Legislative Session 1138 2026 South Dakota Legislature House Bill 1138 HOUSE HEALTH AND HUMAN SERVICES ENGROSSED Introduced by: Representative Heermann Underscores indicate new language. Overstrikes indicate deleted language. An Act to require the licensure of non-medical home care agencies, and to provide 1 a penalty therefor. 2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 3 Section 1. That a NEW SECTION be added to a NEW CHAPTER in title 34: 4 Terms defined in this chapter mean: 5 (1) "Client," an individual individual, at least eighteen years of age, who receives non-medical 6 home care services from a home 6 care aide; 7 (2) "Department," the Department of Health; 8 (3) "Home care aide," an individual employed by or under contract with a non-medical 9 home care agency to provide non-medical home care services; services for wages in return 10 for services rendered; 11 (4) "Non-medical home care agency," a person that that, for compensation and as a regular 12 part of a business, 11 provides, or employs or contracts with home care aides to 13 provide, non-medical 12 home care services intended to enable a client to remain 14 safely in the client's 13 personal residence; and 14 15 (5) "Non-medical home care services," two or more of the following, when provided by 16 a home care 15 aide to a client: 16 17 (a) Assistance with bathing, dressing, eating, personal grooming, or toileting; 17 18 (b) Assistance with the self-administration of medications; 18 19 (c) Companionship; 19 20 (d) Housekeeping or assistance with household chores; 20 21 (e) Meal preparation; 21 (f) Transportation; or 22 (g) (f) Other routine activities of daily living that are not required to be performed 23 by a licensed health care professional. 24 Section 2. That a NEW SECTION be added to a NEW CHAPTER in title 34: 25 26.607.26 26.607.27 2 1138 Underscores indicate new language. Overstrikes indicate deleted language. A non-medical home care agency may not operate in this state unless the agency 1 is licensed by the department. 2 Any person who operates, claims to operate, or advertises as operating, a non-3 medical home care agency without a license is guilty of a Class 1 misdemeanor. 4 Section 3. That a NEW SECTION be added to a NEW CHAPTER in title 34: 5 To obtain or renew a license to operate a non-medical home care agency, a person 6 shall submit to the department: 7 (1) An application, developed by the department; 8 (2) A fee, established by the department in rules promulgated in accordance with 9 chapter 1-26, but not exceeding one hundred dollars; 10 (3) The name and contact information of the agency's owner; 11 (4) An attestation that: 12 (a) Any home care aides employed by or under contract with the agency have 13 completed training in accordance with section 4 of this Act; and 14 (b) The owner of the agency and any home care aides employed by or under 15 contract with the agency have submitted to and passed a criminal history 16 background check, in accordance with section 5 of this Act; and 17 (5) Proof of professional liability insurance, as required by section 7 of this Act. 18 A license issued in accordance with this section is valid for one year from the date 19 of issuance. A licensee may apply for renewal beginning thirty days before the expiration 20 of the license. If the renewal application is submitted within thirty days after the expiration 21 of the license, the department must assess a two-hundred-dollar late fee and may 22 reinstate the expired license. 23 Any fee submitted under this section is nonrefundable. 24 Section 4. That a NEW SECTION be added to a NEW CHAPTER in title 34: 25 A non-medical home care agency must ensure that any home care aide employed 26 by or under contract with the agency has completed at least eight hours of training on the 27 provision of non-medical home care services during the first six months of employment or 28 during the first six months of a contract for services. The training must comprise of: 28 29 (1) At least two hours on basic care for individuals living with Alzheimer's and 29 30 dementia; and 30 31 (2) At least six hours on: 31 32 (a) The maintenance of a clean and safe environment; 32 26.607.26 33 26.607.27 3 1138 Underscores indicate new language. Overstrikes indicate deleted language. (b) Safe techniques for assisting with bathing, dressing, personal grooming, 1 and toileting; 2 (c) Basic nutrition, meal preparation, food safety, and eating assistance; 3 (d) Client confidentiality, privacy, and documentation and record requirements; 4 and 5 (e) Elder abuse, neglect, and exploitation reporting and prevention. 6 The agency shall maintain, for each home care aide, documentation of the 7 completion of the training, and shall provide the documentation to the department, upon 8 request. 9 A home care aide who is licensed, certified, or registered as a health care 10 professional, in accordance with title 36, satisfies the training requirements of this section 11 if the professional provides documentation to the agency demonstrating training in the 12 topics set forth above, as part of the process for obtaining or renewing licensure, 13 certification, or registration. 14 Section 5. That a NEW SECTION be added to a NEW CHAPTER in title 34: 15 A non-medical home care agency shall require every employed or contracted home 16 care aide to submit to a criminal history background check in accordance with procedures 17 established by the department. 18 Neither the owner of an agency, nor any home care aides employed by or 19 contracted with the agency, may have been convicted of, or pled guilty or nolo contendere 20 to, the following crimes in this state or a comparable crime in another state: 21 (1) A crime of violence, as defined by § 22-1-2; 22 (2) A sex crime listed in § 22-24B-1, or another crime under chapters 22-22, 22-22A, 23 or 22-24A; or 24 (3) A Class A or B felony. 25 A non-medical home care agency may employ or contract with a home care aide 26 on a temporary basis pending the receipt of the criminal history background check. The 27 non-medical home care agency may, without liability, terminate a home care aide's 28 employment or contract if the background check reveals a disqualifying record. 29 The agency may not disseminate any information obtained under this section to a 30 person not employed by the agency. 31 Section 6. That a NEW SECTION be added to a NEW CHAPTER in title 34: 32 26.607.26 26.607.27 4 1138 Underscores indicate new language. Overstrikes indicate deleted language. A non-medical home care agency shall maintain records documenting the type and 1 frequency of services provided to each client and shall provide client records to the 2 department upon request. 3 Client records and any personally identifiable information regarding a client are 4 confidential and may be disclosed only as permitted by law or as authorized by the client 5 or the client's designee. 6 Section 7. That a NEW SECTION be added: added to a NEW CHAPTER in title 34: 7 A non-medical home care agency shall carry professional liability insurance 8 coverage, from a company that holds a certificate of authority from the Division of 9 Insurance, with limits of no less than two hundred fifty thousand dollars per occurrence. 10 Section 8. That a NEW SECTION be added to a NEW CHAPTER in title 34: 11 The department may inspect or audit a non-medical home care agency, during 12 business hours, for compliance with this chapter, based on reasonable cause. The 13 department shall provide notice to the non-medical home care agency before conducting 14 an inspection or audit. 15 The department shall investigate any complaint alleging a violation of this chapter 16 or rules promulgated thereunder in the same manner as chapter 36-1C. 17 Section 9. That a NEW SECTION be added to a NEW CHAPTER in title 34: 18 The department may, in accordance with chapter 1-26, deny the issuance or 19 renewal of, or may suspend or revoke, a license issued under this chapter, for a violation 20 of any provision of this chapter or rules promulgated thereunder. 21 Any party aggrieved by any act, ruling, or decision of the department may appeal 22 the act, ruling, or decision under the provisions of chapter 1-26. 23 Section 10. That a NEW SECTION be added to a NEW CHAPTER in title 34: 24 The department shall promulgate rules, in accordance with chapter 1-26, to 25 establish: 26 (1) The application process for licensure as a non-medical home care agency; 27 (2) Home care aide training program standards necessary to protect the health and 28 safety of clients; 29 (3) Record keeping requirements for agencies; and 30 26.607.26 26.607.27 5 1138 Underscores indicate new language. Overstrikes indicate deleted language. (4) Procedures for the completion of criminal history background checks for 1 prospective agency employees or contractors. 2 Section 11. That a NEW SECTION be added to a NEW CHAPTER in title 34: 3 There is created in the state treasury the non-medical home care agency regulatory 4 fund. The fund consists of all fees imposed pursuant to this chapter. 5 The department shall administer the fund. The purpose of the fund is to defray 6 expenses associated with administering this chapter. Interest on moneys credited to the 7 fund must be deposited into the fund. Expenditures from the fund must be budgeted 8 through the general appropriation bill. 9 Section 12. That a NEW SECTION be added to a NEW CHAPTER in title 34: 10 This chapter does not apply to: 11 (1) A home health agency certified by the Centers for Medicare and Medicaid Services; 12 (2) A health care facility licensed in accordance with chapter 34-12; 13 (3) A residential care facility registered in accordance with chapter 34-12; 14 (4) A community services provider or a community support provider; 15 (5) A health care professional, licensed in accordance with title 36, who provides non-16 medical home cares services in conjunction with health care services in an 17 individual's personal residence; 18 (6) A person who coordinates, refers, or matches a non-medical home care agency to 19 a potential client, but who does not employ or contract with any home care aides; 20 or 21 (7) An individual who provides care to another family member. 22 Section 13. That a NEW SECTION be added to a NEW CHAPTER in title 34: 23 Nothing in this chapter authorizes a non-medical home care agency to provide 24 services that are required to be provided by a licensed health care professional. 25 Section 14. This Act is effective beginning January 1, 2027. 26

26.607.27 26.607.28 101st Legislative Session 1138 2026 South Dakota Legislature House Bill 1138 HOUSE ENGROSSED Introduced by: Representative Heermann Underscores indicate new language. Overstrikes indicate deleted language. ENROLLED AN ACT ENTITLED An Act to require the licensure of non-medical home care agencies, and to provide 1 a penalty therefor. 2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: 3 Section 1. That a NEW SECTION be added to a NEW CHAPTER in title 34: 4 Terms defined in this chapter mean: 5 (1) "Client," an individual, at least eighteen years of age, who receives non-medical 6 home care services from a home care aide; 7 (2) "Department," the Department of Health; 8 (3) "Home care aide," an individual employed by or under contract with a non-medical 9 home care agency to provide non-medical home care services for wages in return 10 for services rendered; 11 (4) "Non-medical home care agency," a person that, for compensation and as a regular 12 part of a business, provides, or employs or contracts with home care aides to 13 provide, non-medical home care services intended to enable a client to remain 14 safely in the client's personal residence; and 15 (5) "Non-medical home care services," two or more of the following, when provided by 16 a home care aide to a client: 17 (a) Assistance with bathing, dressing, eating, personal grooming, or toileting; 18 (b) Assistance with the self-administration of medications; 19 (c) Companionship; 20 (d) Housekeeping or assistance with household chores; 21 (e) Meal preparation; or 22 (f) Other routine activities of daily living that are not required to be performed 23 by a licensed health care professional. 24 Section 2. That a NEW SECTION be added to a NEW CHAPTER in title 34: 25 26.607.27 26.607.28 2 1138 Underscores indicate new language. Overstrikes indicate deleted language. HB1138 ENROLLED A non-medical home care agency may not operate in this state unless the agency 1 is licensed by the department. 2 Any person who operates, claims to operate, or advertises as operating, a non-3 medical non-medical home care agency without a license is guilty of a Class 1 misdemeanor. 4 Section 3. That a NEW SECTION be added to a NEW CHAPTER in title 34: 5 To obtain or renew a license to operate a non-medical home care agency, a person 6 shall submit to the department: 7 (1) An application, developed by the department; 8 (2) A fee, established by the department in rules promulgated in accordance with 9 chapter 1-26, but not exceeding one hundred dollars; 10 (3) The name and contact information of the agency's owner; 11 (4) An attestation that: 12 (a) Any home care aides employed by or under contract with the agency have 13 completed training in accordance with section 4 of this Act; and 14 (b) The owner of the agency and any home care aides employed by or under 15 contract with the agency have submitted to and passed a criminal history 16 background check, in accordance with section 5 of this Act; and 17 (5) Proof of professional liability insurance, as required by section 7 of this Act. 18 A license issued in accordance with this section is valid for one year from the date 19 of issuance. A licensee may apply for renewal beginning thirty days before the expiration 20 of the license. If the renewal application is submitted within thirty days after the expiration 21 of the license, the department must assess a two-hundred-dollar late fee and may 22 reinstate the expired license. 23 Any fee submitted under this section is nonrefundable. 24 Section 4. That a NEW SECTION be added to a NEW CHAPTER in title 34: 25 A non-medical home care agency must ensure that any home care aide employed 26 by or under contract with the agency has completed at least eight hours of training on the 27 provision of non-medical home care services during the first six months of employment or 28 during the first six months of a contract for services. The training must comprise of: 29 (1) At least two hours on basic care for individuals living with Alzheimer's and 30 dementia; and 31 (2) At least six hours on: 32 (a) The maintenance of a clean and safe environment; 33 26.607.27 26.607.28 3 1138 Underscores indicate new language. Overstrikes indicate deleted language. HB1138 ENROLLED (b) Safe techniques for assisting with bathing, dressing, personal grooming, 1 and toileting; 2 (c) Basic nutrition, meal preparation, food safety, and eating assistance; 3 (d) Client confidentiality, privacy, and documentation and record requirements; 4 and 5 (e) Elder abuse, neglect, and exploitation reporting and prevention. 6 The agency shall maintain, for each home care aide, documentation of the 7 completion of the training, and shall provide the documentation to the department, upon 8 request. 9 A home care aide who is licensed, certified, or registered as a health care 10 professional, in accordance with title 36, satisfies the training requirements of this section 11 if the professional provides documentation to the agency demonstrating training in the 12 topics set forth above, as part of the process for obtaining or renewing licensure, 13 certification, or registration. 14 Section 5. That a NEW SECTION be added to a NEW CHAPTER in title 34: 15 A non-medical home care agency shall require every employed or contracted home 16 care aide to submit to a criminal history background check in accordance with procedures 17 established by the department. 18 Neither the owner of an agency, nor any home care aides employed by or 19 contracted with the agency, may have been convicted of, or pled guilty or nolo contendere 20 to, the following crimes in this state or a comparable crime in another state: 21 (1) A crime of violence, as defined by § 22-1-2; 22 (2) A sex crime listed in § 22-24B-1, or another crime under chapters 22-22, 22-22A, 23 or 22-24A; or 24 (3) A Class A or B felony. 25 A non-medical home care agency may employ or contract with a home care aide 26 on a temporary basis pending the receipt of the criminal history background check. The 27 non-medical home care agency may, without liability, terminate a home care aide's 28 employment or contract if the background check reveals a disqualifying record. 29 The agency may not disseminate any information obtained under this section to a 30 person not employed by the agency. 31 Section 6. That a NEW SECTION be added to a NEW CHAPTER in title 34: 32 26.607.27 26.607.28 4 1138 Underscores indicate new language. Overstrikes indicate deleted language. HB1138 ENROLLED A non-medical home care agency shall maintain records documenting the type and 1 frequency of services provided to each client and shall provide client records to the 2 department upon request. 3 Client records and any personally identifiable information regarding a client are 4 confidential and may be disclosed only as permitted by law or as authorized by the client 5 or the client's designee. 6 Section 7. That a NEW SECTION be added to a NEW CHAPTER in title 34: 7 A non-medical home care agency shall carry professional liability insurance 8 coverage, from a company that holds a certificate of authority from the Division of 9 Insurance, with limits of no less than two hundred fifty thousand dollars per occurrence. 10 Section 8. That a NEW SECTION be added to a NEW CHAPTER in title 34: 11 The department may inspect or audit a non-medical home care agency, during 12 business hours, for compliance with this chapter, based on reasonable cause. The 13 department shall provide notice to the non-medical home care agency before conducting 14 an inspection or audit. 15 The department shall investigate any complaint alleging a violation of this chapter 16 or rules promulgated thereunder in the same manner as chapter 36-1C. 17 Section 9. That a NEW SECTION be added to a NEW CHAPTER in title 34: 18 The department may, in accordance with chapter 1-26, deny the issuance or 19 renewal of, or may suspend or revoke, a license issued under this chapter, for a violation 20 of any provision of this chapter or rules promulgated thereunder. 21 Any party aggrieved by any act, ruling, or decision of the department may appeal 22 the act, ruling, or decision under the provisions of chapter 1-26. 23 Section 10. That a NEW SECTION be added to a NEW CHAPTER in title 34: 24 The department shall promulgate rules, in accordance with chapter 1-26, to 25 establish: 26 (1) The application process for licensure as a non-medical home care agency; 27 (2) Home care aide training program standards necessary to protect the health and 28 safety of clients; 29 (3) Record keeping requirements for agencies; and 30 26.607.27 26.607.28 5 1138 Underscores indicate new language. Overstrikes indicate deleted language. HB1138 ENROLLED (4) Procedures for the completion of criminal history background checks for 1 prospective agency employees or contractors. 2 Section 11. That a NEW SECTION be added to a NEW CHAPTER in title 34: 3 There is created in the state treasury the non-medical home care agency regulatory 4 fund. The fund consists of all fees imposed pursuant to this chapter. 5 The department shall administer the fund. The purpose of the fund is to defray 6 expenses associated with administering this chapter. Interest on moneys credited to the 7 fund must be deposited into the fund. Expenditures from the fund must be budgeted 8 through the general appropriation bill. 9 Section 12. That a NEW SECTION be added to a NEW CHAPTER in title 34: 10 This chapter does not apply to: 11 (1) A home health agency certified by the Centers for Medicare and Medicaid Services; 12 (2) A health care facility licensed in accordance with chapter 34-12; 13 (3) A residential care facility registered in accordance with chapter 34-12; 14 (4) A community services provider or a community support provider; 15 (5) A health care professional, licensed in accordance with title 36, who provides non-16 medical non-medical home cares services in conjunction with health care services in an 17 individual's personal residence; 18 (6) A person who coordinates, refers, or matches a non-medical home care agency to 19 a potential client, but who does not employ or contract with any home care aides; 20 or 21 (7) An individual who provides care to another family member. 22 Section 13. That a NEW SECTION be added to a NEW CHAPTER in title 34: 23 Nothing in this chapter authorizes a non-medical home care agency to provide 24 services that are required to be provided by a licensed health care professional. 25 Section 14. This Act is effective beginning January 1, 2027. 26 26.607.28 6 1138 HB1138 ENROLLED An Act to require the licensure of non-medical home care agencies, and to provide a penalty therefor. I certify that the attached Act originated in the: House as Bill No. 1138 Chief Clerk of the House Speaker of the House Attest: Chief Clerk of the House President of the Senate Attest: Secretary of the Senate House Bill No. 1138 File No. ____ Chapter No. ______ Received at this Executive Office this _____ day of _____________, 2026 at ____________M. By for the Governor The attached Act is hereby approved this ________ day of ______________, A.D., 2026 Governor STATE OF SOUTH DAKOTA, ss. Office of the Secretary of State Filed ____________, 2026 at _________ o'clock __M. Secretary of State By Asst. Secretary of State