DMR Eligibility Decision by H.O. MacKiernan 10 3 08

Outcome: Eligible
Keyword: domicile

Hearing Officer: Sarah MacKiernan
Counsel present for Appellant: Lisa M. Cukier
Counsel present for DMR: Patrick Murphy
Appellant present:
Hearing Officer decision: Oct. 3, 2008
Appeal confirmed by Commissioner: Nov. 17, 2008

The appellant lived in both Mass. and New Hampshire with his parents. When he was 15, his mother, who lived in New Hampshire, arranged for his placement at Cardinal Cushing Center. Over the nine years at Cardinal Cushing, his grandfather paid for the majority of his costs there, and Windham School Department also contributed until 2003. Social Security paid part of it as well since 2007.

When the appellant was 18, his mother was appointed his guardian in a NH court. In June 2006, appellant's mother and aunt were appointed co-guardians in Plymouth County Court. Appellant's grandfather continued to live in Florida, and the Mother still lived in NH. Windham stopped paying the special education costs when the appellant turned 18, and his mother never requested special education funding from Hanover Mass. In 2007 appellant applied for DMR assistance, he was 23 at the time and living in a group home in
Mass.

The hearing officer found that at the time Windham was paying special education funds, he was domiciled in NH. As long as the appellant was benefiting from being a domiciliary of one state, he could not claim domicile in another state.

The hearing officer considered evidence of athletic and social activities and stated: "Although participation in these activities contributes to the idea that he plans to stay in the community, because they are available to anyone they cannot stand alone as indications of intent to make Massachusetts home."

The hearing officer went on to consider his voter registration, his income tax, and an affidavit/testimony that the appellant intended to remain in Mass indefinitely and considered Mass his home. The appellant also testified that he had chosen to live in his group home and that he used Cardinal Cushing adult
programs. In addition, the appellant testified that he planned to stay in MA until retired, and that he has several jobs in Mass. now, and he does not have any belongings in NH.

The hearing officer found that even though the appellant had a guardian, his testimony made it clear that he had made the decision to remain in Mass. on his own.  "The fact that his guardian and family agreed with his decision, does not negate his ability to decide for himself."

DMR argued that the circumstances around the appellant's initial move should remain determinative. However, the hearing officer found that if the initial determination of domicile is based on a presumption, then there must be an opportunity to rebut that presumption.

The hearing officer found that by a preponderance of evidence the appellant had met the burden of rebutting the presumption against his domicile being Mass.