DDS Eligibility Decision by H.O. Adamo 2010-4

DDS Eligibility Decision by H.O. Jeanne Adamo, 2010-4

Outcome: Ineligible

Keyword: domicile

Hearing Officer: Jeanne Adamo

Counsel present for Appellant: Yes, but redacted

Counsel present for DDS: Elizabeth Duffy, Esq.

Appellant present: Yes

Hearing Officer decision: 2010

Commissioner letter: 2010

Issue Presented:

Whether the Appellant meets the DDS eligibility requirements for DOMICILE as set forth in 115 CMR 6.04.

Summary of the Case:

            Hearing Officer found that the Appellant failed to meet his burden of proving by a preponderance of the evidence that he meets the DDS eligibility criteria for domicile.

At the time of hearing, appellant was a DMH patient under guardianship.  The guardianship was obtained after the application for DDS services. He is seeking to be eligible for DDS Adult Services. 

            Hearing Officer found that the Appellant was living with his brother in the State of New Hampshire when the Appellant was arrested and subsequently incarcerated in the State of Massachusetts. Prior to that arrest, the Appellant was domiciled in Georgia, and  the Appellant was not domiciled in Massachusetts at the time of his arrest.

The Hearing Officer found that the evidence showed that after the arrest the Appellant was either confined, or believed that he was confined to various DMH mental health hospitals.  He was prevented from leaving to return to his original home state of Georgia, or to the state of New Hampshire, even though he voiced his desire to do so on multiple occasions.

The Appellant has been in residency in the Commonwealth of Massachusetts since 2002, either in the Massachusetts criminal justice system or the Massachusetts mental health system.  The Hearing Officer found that the Appellant’s involuntary presence in the state of Massachusetts for these many years does not, alone, indicate that he is a domiciliary of Massachusetts. He has been confined against his will.  Intent to change domicile must be proven, and nothing in the record {including Appellant’s own testimony at the Fair Hearing} indicates that the Appellant intended to change his domicile to that of the Commonwealth.

The Hearing Officer found that the evidence supported a contention that guardianship of the Appellant by DMH was used as a mechanism to subvert the Appellant's wishes to leave the state of Massachusetts and return to his family in Georgia. The Appellant had expressed his desire on multiple occasions to return to Georgia and/or other out of state locations in order to be with one of his brothers; the Appellant again stated at his Fair Hearing that he did not want to remain in Massachusetts; and the

Appellant's overall testimony at the Fair Hearing was not indicative of a person who intended or wished to remain in Massachusetts.

The Hearing Officer found that the Appellant is currently receiving care and treatment in a secured unit of a DMH psychiatric hospital where he is benefiting from the expertise that is available from professionals who have background and expertise in mental illness, treatment that could potentially bring the Appellant to a level of self-monitoring that might allow him to meet his expressed desire of returning to Georgia.  

The Hearing Officer found that no evidence had been presented to indicate that a transfer of care and treatment to DDS would in any way be superior to the care and treatment he is currently receiving. No evidence was presented to prove that a transfer of responsibility from DMH to DDS will result in improved care and treatment for the Appellant, and conversely, no evidence has been presented to prove that remaining with DMH will diminish the Appellant's care and treatment.

The Hearing Officer found that a finding of Domicile in Massachusetts would simply transfer the responsibility from one state agency to another without any evidence of benefit to the Appellant.

Based on the evidence presented the Hearing Office found that the Appellant did not meet DDS's regulatory requirement for domicile found at 115 CMR 6.04 (2)(a) as he “does not intend to remain in Massachusetts permanently or for an indefinite period. The weight of the evidence shows that the requirement of domicile, as that term is used and interpreted by DDS for the determination of DDS supports, is not met in this case as the provisions of 115 CMR 6.04 (2)(a) are not present.”

Therefore, DDS's determination of ineligiblity is upheld.

[Appellant appealed to Superior Court and parties came to agreement by which Appellant reapplied and was found eligible.]