DMR eligibility decision of H.O. MacKiernan 4 2 08

Sarah MacKiernan

Keyword: domicile

Hearing Officer: Sarah MacKiernan

Counsel present for Appellant: James Nelligan

Counsel present for DMR: Patrick Murphy

Hearing Officer decision: Apr. 2, 2008

Appeal confirmed by Commissioner: Sept. 5, 2008

Outcome: Eligible

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/ Nelligan decision /supra. The current question before the hearing officer, is whether or not the appellant can rebut the regulations now, even though they clearly applied to him before.

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 here 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 this was not his intention, his guardian intended for him to remain here in ass. 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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