Request By:
Hon. Joe Clarke
Representative, 54th District
120 North Third Street
Danville, Kentucky 40422
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Nancy A. Barrickman, Assistant Attorney General
You have raised several questions regarding the responsibility of counties for payment of the examiners' fees in proceedings under the new Guardianship and Conservatorship Act (1982 regular session, Ch. 141, eff. July 1, 1982).
Prior to a hearing on a petition for a determination of partial disability or disability and the appointment of a limited guardian, guardian, limited conservator or conservator, an interdisciplinary evaluation report shall be filed with the court pursuant to KRS 387.540. Subsection (8) of that statute provides for the payment of the fees of the professionals who conduct the evaluation and compile the evaluation report for the court concerning the person alleged to be disabled or partially disabled.
Your first question is whether the examiners' fees are to be paid by the county, regardless of the wealth of the disabled person.
KRS 387.540(8) provides:
"(8) The examiners shall be paid by the county in which the petition is filed upon an order of allowance entered by the court. Payment shall be in an amount which is reasonable as determined by the court, except no payment shall be required of the county for an evaluation performed by a salaried employe of a state agency for an evaluation performed within the course of his employment. Additionally, no payment shall be required of the county for an evaluation performed by a salaried employe of a community mental health-mental retardation center or private facility or agency where the costs incurred by the center, facility, or agency are reimbursable through third-party payors. Affidavits or other competent evidence are admissible to prove the services rendered but not to prove their value."
Under the literal terms of the statute, the examiners' fees would be paid by the county in which the petition is filed, except where payment of a particular examiner is not required in case of a salaried state agency employe, or in case of a salaried employe of a community mental health-mental retardation center or private facility or agency where the costs incurred by the facility or agency are reimbursable through third-party payors.
The language of the statute is clear and unambiguous. By all rules of statutory construction, we are required to give the words of the statute their ordinary meaning. "Shall" does not mean "may" but is mandatory. Fayette County Ed. Ass'n v. Hardy, Ky. App., 626 S.W.2d 217 (1980); Woods v. Commonwealth, Ky., 305 S.W.2d 935 (1957).
When the language of a statute is clear and unambiguous, there is not room for construction, and the statute must be accepted and enforced as it is written. Griffin v. City of Bowling Green, Ky., 458 S.W.2d 456 (1970).
This interpretation is consistent with prior provisions relating to the payment of examiners' fees. KRS 205.015, repealed in Section 146 of Chapter 141 (1982), provided for the appointment of two physicians or one physician and one certified clinical psychologist to examine the defendant in an incompetency proceeding. The statute further provided for the examiners' fees "to be paid by the county in which the petition is filed, upon a certified copy of an order of allowance made by the court holding the inquest." KRS 203.015(3).
It is noted KRS 387.540(10), unlike KRS 540(8), specifically provides examiners' fees may be paid by the county for an independent evaluation secured by the respondent (possibly duplicating the court ordered examination) if the respondent "is unable to pay." Thus, KRS 387.540(10) expressly links payment of the examiners' fees, in the case of an independent evaluation, to the respondent's ability to pay. Such a provision is conspicuously absent from KRS 387.540(8), further indicating the intent of the legislature to require the county to pay for all court ordered examinations regardless of the respondent's ability to pay.
You call our attention to the fact KRS 387.760(1) provides that no court costs shall be charged to a respondent in any proceeding under KRS 387.500 to 387.770, if the respondent is a poor person as defined by KRS 453.190. In addition, KRS 387.560(2) provides the county is responsible for payment of counsel fees for the respondent, if the respondent is a poor person as defined by KRS 453.190.
Although it may be argued that a respondent should be responsible for payment of the examiners' fees if he is not a poor person as defined by KRS 453.190, this is a matter which may be addressed to the General Assembly. The plain meaning of a law cannot be ignored by the courts simply because another meaning might be considered to state a better policy. Board of Education of Nelson County v. Lawrence, Ky., 375 S.W.2d 830 (1963).
Therefore, it is our opinion that the examiners' fees must be paid by the county in which the petition is filed, regardless of the wealth of the disabled person.
You next ask the meaning of the term "third party payors" contained in KRS 387.540(8) wherein it states "no payment shall be required of the county for an evaluation performed by a salaried employe of a community mental health-mental retardation center or private facility or agency where the costs incurred by the center, facility or agency are reimbursable through third-party payors. " (Emphasis added.) In our opinion, the term "third-party payors" refers to medical insurers.
Finally, you ask whether the county is responsible for payment of the examiners' fees where a respondent dies after an examination is completed but prior to trial, or in cases where a jury determines the respondent not to be disabled. It is our opinion that the mandatory language of KRS 387.540(8) requires payment of the examiners' fees by the county in all cases.