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DMR Eligibility Decision by H.O. MacKieran 9 2 08

Date: 
09/02/2008
Author: 
MacKieran
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Outcome: Eligible
Keyword: domicile 

Hearing Officer: Sarah MacKiernan
Counsel present for Appellant: James Nelligan
Counsel present for DMR: Patrick Murphy
Hearing Officer decision: Sept. 2, 2008 (note: decision is Sept., not April)
Appeal confirmed by Commissioner: Sept. 5, 2008

This is appeal was heard on remand from Superior Court. Previously, appellant had been found ineligible for DMR services, because the hearing officer concluded that the appellant did not meet the criteria to qualify for being domiciled in Mass. See decision of Hearing Officer Brown, 12/6/06.

The current question before the hearing officer, is whether or not the appellant can rebut the presumption that he isn't domiciled in Massachusetts.

The hearing officer considered a letter submitted by appellant's guardian to DMR, which unequivocally stated that the guardian believed that it was in ward's best interest to continue to reside at New
England Village, and further that it was their intention to have him reside there indefinitely. The hearing officer also heard evidence from a doctor who met with the appellant to determine if the appellant was capable of choosing his own home. The doctor concluded that he was not capable of making this choice on his own. Another doctor also submitted evidence that the appellant wanted to remain at his current residence, and that he considers it his home.

The hearing officer concluded that the appellant had formed the intent to remain at New England Villages indefinitely, and that even if his intention were not clear and one found he was not capable of making this
determination, his guardian intended for him to remain here in Mass. indefinitely. Thus, the hearing officer
concluded that for the purposes of CMR 6.04(1),(2) the appellant was domiciled in Mass.

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