1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-10-1995

Juvelis v Snider

Precedential or Non-Precedential:

Docket 94-2207

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Recommended Citation

"Juvelis v Snider" (1995). 1995 Decisions. Paper 263.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/263
1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 94-2207 

___________ 

NIKITAS JUVELIS, an incompetent, 

by his father and next friend, GEORGE JUVELIS 

v. 

KAREN SNIDER, in her official capacity as 

the Secretary of the Department of Public Welfare, 

Commonwealth of Pennsylvania, 

 Appellant 

_______________________________________________ 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civil Action No. 93-cv-02911) 

___________________ 

Argued July 20, 1995 

Before: SLOVITER, Chief Judge, 

SCIRICA and McKEE, Circuit Judges

(Filed: October 10, 1995) 

 KATE L. MERSHIMER, ESQUIRE (ARGUED) 

 Office of Attorney General 

 of Pennsylvania 

 Strawberry Square, 15th Floor 

 Harrisburg, Pennsylvania 17120 

 Attorney for Appellant 

 EDMOND A. TIRYAK, ESQUIRE (ARGUED) 

 The Curtis Center, Suite 1100 

 6th and Walnut Streets 

 Philadelphia, Pennsylvania 19106 

 Attorney for Appellee 
2 

__________________ 

OPINION OF THE COURT 

__________________ 

SCIRICA, Circuit Judge. 

 In this case we must decide whether the policy of 

Pennsylvania's Department of Public Welfare requiring intent to 

establish domicile discriminates under section 504 of the 

Rehabilitation Act, 29 U.S.C. § 794(a) (1988), against a 

profoundly retarded individual on the basis of his handicap. The 

district court found the policy discriminatory and required the 

Department of Public Welfare to fund retardation services for the 

plaintiff Nikitas Juvelis. We will affirm. 

I. 

 Nikitas Juvelis (Niki) is a profoundly retarded and 

physically handicapped 33 year old citizen of the United States.0

Although Niki's parents are also United States citizens, they 

have lived in Venezuela since Niki's birth. When Niki was 

fifteen, his parents placed him, at their expense, in the Melmark 

Home, a residential home for the handicapped in Delaware County, 

Pennsylvania. He has lived there continuously for the past 

eighteen years. Prior to Niki's placement in Melmark, his 

parents had no connection to Pennsylvania. In recent years, 

Melmark's costs have gone up sharply, while Niki's parents have 

gotten older and their income has declined. The Juvelises 

 

0

The American Association for Mental Deficiencies defines 

profoundly retarded individuals as those with I.Q. scores below 

20. Niki additionally has cerebral palsy and clubbed feet and is 

confined to a wheelchair. 
3 

anticipate that soon they will be unable to afford Niki's fees at 

Melmark.0

 Pennsylvania's Department of Public Welfare (DPW) 

provides benefits to retarded persons, which can include payment 

for placements in facilities like Melmark. The Juvelises applied 

for such coverage for Niki. DPW policy gives the counties 

primary responsibility for determining eligibility for mental 

retardation services. But the counties may not expend state 

funds to provide services for a person who is not a state 

resident. Niki was turned down for coverage because, for funding 

purposes, he was not considered a bona fide resident0 of Delaware 

County or of Pennsylvania. This residency determination was made 

on the basis of DPW policy, but that policy is nowhere codified 

as a rule or regulation. 

 Generally, the policy on residency requires the county 

to determine the domicile of the individual prior to placement. 

In this case, because Niki was a minor before placement, he was a 

resident of his parents' domicile, Venezuela. When an individual 

reaches majority, DPW presumes he retains his parents' domicile 

 

0

When Niki first arrived at Melmark, the cost of tuition was 

$11,000 per year. Currently, Melmark's tuition is $60,000. Over 

the past eighteen years, the Juvelises have paid several hundred 

thousand dollars to Melmark. 

0

A bona fide resident is one who is legally domiciled in 

Pennsylvania. See discussion infra, part V. We recognize the 

distinction between domicile and residence. See, e.g., 13B 

Charles A. Wright et al., Federal Practice and Procedure § 3612 

(2d ed. 1984) ("[T]he domicile of a person is the place where he 

has his true, fixed home and principal establishment, and to 

which, whenever he is absent, he has the intention of returning. 

Domicile . . . is more than an individual's residence, although 

the two typically coincide."). In this opinion, when we say 

residence, we are referring to bona fide residence or domicile. 
4 

unless and until he establishes a new one. Proof of change of 

domicile has two components: physical presence plus an intent to 

remain. Niki has physical presence in Delaware County, 

Pennsylvania. What he lacks is the mental capacity to form an 

intent to remain. The crux of this case is whether a residency 

requirement that depends on mental capacity is discriminatory in 

a way that violates § 504 of the Rehabilitation Act. To answer 

this question, we must determine whether residency is essential 

to DPW's program and whether Niki can satisfy the residency 

requirement under a reasonable modification to DPW's policy. 

Easley v. Snider, 36 F.3d 297, 300 (3d Cir. 1994). "The test to 

determine the reasonableness of a modification is whether it 

alters the essential nature of the program or imposes an undue 

burden or hardship in light of the overall program." Id. at 305. 

Accordingly, DPW must show that it cannot employ an exception to 

its residency policy that would accommodate profoundly retarded 

persons without incurring an undue burden or modifying the 

essential nature of its program. 

II. 

 Section 504 of the Rehabilitation Act provides: 

"No otherwise qualified individual with a 

disability . . . shall, solely by reason of 

her or his disability be excluded from the 

participation in, be denied the benefits of, 

or be subjected to discrimination under any 

program or activity receiving Federal 

financial assistance . . . ." 

29 U.S.C. § 794(a) (1988 & Supp. IV 1992). As a recipient of 

federal financial assistance, DPW is subject to the requirements 

of § 504. DPW maintains that Niki is not "otherwise qualified" 
5 

for inclusion in Pennsylvania's mental retardation program 

because he is not a Pennsylvania resident. The Juvelises contend 

that Pennsylvania's policy for determining residency makes Niki's 

exclusion "solely by reason of" his retardation. DPW counters 

that it cannot modify implementation of its residency requirement 

in a way that would accommodate Niki's handicap without making 

fundamental changes to its program that would impose an undue 

burden on the Commonwealth. 

III. 

 The Juvelises sued the Secretary of DPW alleging the 

policy violated § 504 of the Rehabilitation Act, his 

constitutional right to travel, and his constitutional rights to 

procedural and substantive due process. Because there was no 

dispute as to any material fact, the district court referred the 

cross motions for summary judgment to the magistrate judge. 

 The magistrate judge issued a report and recommendation 

that plaintiff's motion for summary judgment be granted on the 

ground that DPW policy violated the Rehabilitation Act.0 Both 

parties filed objections. The district court approved the 

magistrate judge's finding that DPW's policy violated § 504, and, 

without setting a timetable, ordered DPW to develop and implement 

a mechanism that would allow the Commonwealth to apply its 

residency requirement in a manner that does not discriminate 

 

0

She also recommended denying defendant's motion for summary 

judgment. Having disposed of the case on statutory grounds, the 

magistrate judge did not reach the constitutional issues. 
6 

against retarded persons. Meanwhile, the court enjoined DPW from 

denying Niki benefits. 

 The Juvelises filed a motion for reconsideration, 

objecting that the court had failed to provide the parties an 

opportunity to be heard on the relief. The district court 

granted the motion for reconsideration, vacated its prior order, 

and ordered instead (1) approval and adoption of the magistrate 

judge's report and recommendation, (2) denial of DPW's motion for 

summary judgment, (3) grant of the Juvelises' motion for summary 

judgment, and (4) a declaration that DPW's residency policy 

violates § 504 and that Niki is eligible for mental retardation 

services. 

 The district court had subject matter jurisdiction of 

these federal claims under 28 U.S.C. §§ 1331 and 1343. We have 

jurisdiction of a final decision of the district court. 28 

U.S.C. § 1291 (1988). In reviewing dispositions on summary 

judgment, we apply the same test the district court should have 

used. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 

1976), cert. denied, 429 U.S. 1038 (1977). 

IV. 

 This case presents the narrow question whether DPW can 

employ an exception to its residency policy that would 

accommodate a profoundly retarded person without incurring an 

undue burden or modifying the essential nature of the program. We 

believe it can. 

A. 
7 

 DPW maintains Niki neither is an "otherwise qualified" 

person, nor has been discriminated against because of his 

handicap. "An otherwise qualified person is one who is able to 

meet all of a program's requirements in spite of his handicap." 

Southeastern Community College v. Davis, 442 U.S. 397, 406 

(1979). DPW contends Niki is not "otherwise qualified" because 

he lacks the capacity to form the intent to establish Delaware 

County or Pennsylvania as his residence. But "an individual may 

be otherwise qualified in some instances even though he cannot 

meet all of a program's requirements." Wagner v. Fair Acres 

Geriatric Center, 49 F.3d 1002, 1009 (3d Cir. 1995). "The 

benefit . . . cannot be defined in a way that effectively denies 

otherwise qualified handicapped individuals the meaningful access 

to which they are entitled; to assure meaningful access, 

reasonable accommodations in the grantee's program or benefit may 

have to be made." Alexander v. Choate, 469 U.S. 287, 300 (1985). 

Furthermore, we have recognized that § 504 requires some 

affirmative steps to accommodate handicapped persons. Nathanson 

v. Medical College of Pennsylvania, 926 F.2d 1368, 1385 (3d Cir. 

1991). The burden is on the recipient of federal funds "to show 

that the required modification entails a substantial alteration 

in order to avoid a violation of the Act." Id. "[I]f there is 

no factual basis in the record demonstrating that accommodating 

the individual would require a fundamental modification or an 

undue burden, then the handicapped person is otherwise qualified 

and refusal to waive the requirement is discriminatory." Easley 

v. Snider, 36 F.3d at 302. See also Wagner, 49 F.3d at 1016-17 
8 

(summary judgment reversed because center failed to offer any 

factual basis demonstrating that admission of plaintiff would 

have changed the essential nature of the facility or imposed an 

undue burden). 

 DPW concedes that but for his inability to meet the 

residency test, Niki is qualified for participation in the 

program providing retardation services. Accordingly, DPW must 

demonstrate that accommodating Niki would require a fundamental 

modification of its program or impose an undue burden. This DPW 

has failed to do.0

B. 

 DPW contends that accommodating Niki would 

impermissibly require modification of the essential nature of its 

program and impose an undue burden. "The first step in resolving 

this dispute must be to ascertain the essential nature of the . . 

. program." Strathie v. Department of Transp., 716 F.2d 227, 231 

(3d Cir. 1983). The essential nature of the program is to 

provide mental retardation services for Pennsylvania residents.0

Thus, DPW maintains, and we agree, that residency is fundamental 

 

0

DPW misperceives the burden of proof on this issue. In its 

brief, DPW states, "[T]here is nothing in the record to indicate 

that Mr. Juvelis's proposed accommodation would be an easily 

administered test." The burden, however, does not lie on Niki to 

show the accommodation could be easily administered. Rather, the 

burden is on DPW to demonstrate that adjusting its requirements 

would fundamentally alter the program or impose an undue burden 

on the department. 

0

Pennsylvania's Mental Health and Mental Retardation Act of 1966, 

as amended, Pa. Stat. Ann. tit. 50, §§ 4101-4704 (Purdon 1969 & 

1994 Supp.), set up a comprehensive system providing various 

mental retardation services for Pennsylvania residents, including 

day programs, family support services, and residential 

placements. 
9 

to this state funded system and Pennsylvania domicile is part of 

the essential nature of its program. See, e.g. Martinez v. 

Bynum, 461 U.S. 321, 327 (1983) (states have a legitimate 

interest in assuring that services provided to its residents are 

only used by its residents). But the Juvelises have not asked 

for elimination of the residency requirement altogether. All 

they are seeking is an exception from the intent component of the 

residency test for their profoundly handicapped child. DPW has 

not demonstrated that provision of mental health services for 

Niki, who has resided in Pennsylvania for eighteen years, will 

interfere with the essential nature of its program. 

 DPW also contends intent is an essential element of 

domicile (which presumably makes it essential to its program). 

But under its present policy, DPW already makes an exception from 

the traditional intent requirement for residency, applying a 

presumption that an incompetent individual must intend to adopt 

the domicile of his parents as of the time he turned eighteen. 

Although the purpose of this policy is to provide benefits only 

to individuals whose parents are domiciled in Pennsylvania, the 

exception discriminates against profoundly retarded individuals 

like Niki, whose parents live elsewhere, but who are themselves 

long term residents of the Commonwealth. DPW has not 

demonstrated that another exception to the intent component would 

compromise the essential nature of its program or be unduly 

burdensome. 

V. 
10 

 The Juvelises argue for an exception to DPW's policy, 

contending that Niki should be permitted to rebut the presumption 

that he retains his parents' domicile and prove that he has 

established legal residency in Pennsylvania. In order to analyze 

the impact of such an exception on the essential nature of the 

program and whether it would constitute an undue burden, we will 

examine the traditional ways of proving intent to change 

domicile. 

A. 

 "Although the meaning may vary according to context, 

`residence' generally requires both physical presence and an 

intention to remain." Martinez v. Bynum, 461 U.S. at 330. "In 

general, the domicile of an individual is his true, fixed and 

permanent home and place of habitation. It is the place to 

which, whenever he is absent, he has the intention of returning." 

Vlandis v. Kline, 412 U.S. 441, 454 (1973) (citing, as 

reasonable, an official opinion of Connecticut's Attorney 

General). "Domicile, therefore, has both a physical and a mental 

dimension . . . ." 13B Charles A. Wright et al., Federal 

Practice and Procedure § 3612 (2d ed. 1984). Although physical 

presence yields easily to objective analysis, divining intent can 

be elusive. 

 Persuasive evidence of intent can include establishment 

of a home, Walls v. Ahmed, 832 F. Supp. 940, 943 (E.D. Pa. 1993), 

place of employment, location of assets, and registration of car, 

Matter of Estate of Phillips, 604 P.2d 747, 754 (Kan. Ct. App. 

1980), and, generally, centering one's business, domestic, 
11 

social, and civic life in a jurisdiction, Walls v. Ahmed, 832 F. 

Supp. at 943; Reiersen v. Commissioner of Revenue, 524 N.E.2d 

857, 858 (Mass. App.Ct. ), rev. denied, 526 N.E.2d 1295 (Mass. 

1988). Motive is not determinative, although it may be important 

evidence tending to show whether or not there was an intention to 

make a home. Restatement of Conflict of Laws § 22 (1934); see 

also Martinez v. Bynum, 461 U.S. at 332-33 (motive betrayed lack 

of intent to change permanent home); Mansfield Township Board of 

Ed. v. State Board of Ed., 129 A. 765, 766 (N.J. Super. 1925) 

(child who is brought into state by parent or guardian who is 

nonresident for purpose of receiving education in public schools 

of state is not a resident). 

B. 

 Although the principle that an incompetent person 

presumptively lacks the capacity to change domicile is well 

grounded in common law, the rule is not immutable. Rishell v. 

Jane Phillips Episcopal Memorial Med. Ctr., 12 F.3d 171, 173 

(10th Cir. 1993). Accordingly, in many instances courts have 

recognized a change of domicile for an incompetent person. The 

burden of proof, however, lies on the person seeking to establish 

a change of domicile. 

 Courts have permitted incompetents to effect changes of 

domicile when they have demonstrated subjective attachment to a 

new home and when objective factors support the conclusion that 

the change would protect the best interests of the individual. 

Thus: 
12 

 The actual mental capacity required for 

selection of a domicil[e] of choice has been 

held to be much less than that required 

generally for the management of an 

individual's affairs, so that ability merely 

to have and express a preference with respect 

to the location of his home has been held 

sufficient to enable an incompetent to select 

his domicil[e]. 

Estate of Freeman v. Department of Revenue, 1989 WL 23045, at *3 

(Or. Tax 1989) (quoting 96 A.L.R. 2d 1236, 1241 (1964)). "Whether 

an incompetent may change his domicile depends on the extent to 

which his reason is impaired. A comparatively slight degree of 

understanding is required. It is sufficient if he understands 

the nature and effect of his act." Coopedge v. Clinton, 72 F.2d 

531, 533 (10th Cir. 1934) (footnote omitted). "It is in every 

case a question of fact whether a person who is mentally 

deficient or of unsound mind is able to choose a home." 

Restatement of Conflict of Laws § 40 cmt. a (1934). "The crucial 

question is whether the person has sufficient mental capacity to 

choose a home. That he may be incapable of managing his own 

affairs is not conclusive; nor is the fact that he has been 

adjudged incompetent and a guardian appointed over his person or 

property." Restatement (Second) of Conflict of Laws § 23 cmt. a 

(1971). "It has been recognized that, while a person may not be 

capable of doing some acts, . . . yet he may have a sufficient 

degree of understanding to change his domicile." In re Estate of 

Phillips v. Ververs, 75 Cal. Rptr. 301, 304 (Cal. Ct. App. 1969) 

(quoting Goodrich, Conflict of Laws (4th ed. Scoles) at 60)). 

 The principle that an incompetent lacks capacity to 

change domicile "rests upon the notion the incompetent person's 
13 

right to declare domicile must be suspended until reason returns 

to avoid legal consequences that may later harm the person's best 

interest." Rishell, 12 F.3d at 173 (citing 13B Wright et al., 

supra, § 3616). "As corollary to the general principle," 

however, the Tenth Circuit has concluded, "when an incompetent 

person will never regain reason, preserving the person's right to 

determine domicile in the future is but a fiction." Id.

Furthermore, "[u]nder New York law, a guardian may change the 

domicile of an incompetent . . . if done in good faith and in the 

best interest of the conservatee." Love v. Roosevelt Hospital, 

1993 WL 190345, at *1 (S.D.N.Y. 1993) (citing Gibbs v. Berger, 

399 N.Y.S.2d 304, 307 (N.Y. App. Div. 1977) which relied on 

objective criteria including length of relationship to New York, 

probability that incompetent would live out her life in New York, 

and abandonment of former residence). In Elliot v. Krear, 466 F. 

Supp. 444 (E.D. Va. 1979), the minor plaintiff's divorced mother, 

who had legal custody of him, was domiciled in California. But 

the court held that the minor was domiciled in Virginia, where he 

was born, had spent all but one year of his life, and where his 

mother had left him in the actual custody of his grandparents. 

Id. at 447. 

 In Dunlap v. Buchanan, 741 F.2d 165, 168 (8th Cir. 

1984) the court recognized the issue to be "a factual question of 

where, considering the mosaic of circumstances surrounding [an 

incompetent's] care and control, he is domiciled." And in In re 

Teeter v. California, 141 Cal. Rptr. 103, 106 (Cal. Ct. App. 

1977), the court observed that a mentally disturbed patient's 
14 

intent is often "unascertainable, and therefore it becomes 

necessary to use objective factors to determine residence." 

(citing 2 B.E. Witkin, California Procedure (Actions) §§ 445-7, 

at 1273 et seq. (2d ed. 1970)). 

C. 

 Because only a minimal degree of mental capacity is 

required to establish a change of domicile, a number of courts 

have dispensed with reliance on an incompetent individual's 

articulation of intent in favor of an analysis that relies on "a 

mosaic of circumstances." Relevant circumstances include the 

opinions of parents or guardians who are acting in good faith and 

in the best interest of the individual, as well as objective 

factors demonstrating the quality of the individual's attachment 

to his proposed domicile. The individual's motive in seeking to 

establish a new domicile, the duration of his relationship to the 

locale, abandonment of a prior residence, and the location of 

assets and friends have all been recognized as demonstrating 

attachment to the proposed domicile. 

VI. 

 Plaintiffs have proposed that DPW should follow those 

states that, in other contexts, consider the "mosaic of 

circumstances" surrounding an incompetent individual's assertion 

of domicile and adopt a "substantial contacts" test for 

residency. To satisfy the requirements of the Rehabilitation 

Act, DPW must show that adoption of such a test would interfere 

with the essential nature of its program or be unduly burdensome. 

We believe that the consideration of relevant circumstances in 
15 

evaluating an incompetent individual's legal assertion of 

domicile will neither alter the essential nature of the program 

nor be unduly burdensome. 

A. 

 To establish a change of domicile under a "substantial 

contacts" test, the individual, or those acting in his behalf, 

must be able to demonstrate good faith. Ordinarily, competent 

individuals may establish a change of domicile by demonstrating a 

sincere or good faith intention to remain in the new location, 

and the absence of any intent to go elsewhere. For a competent 

individual, it makes no difference whether his motive is good or 

bad. Motive becomes relevant to the good faith inquiry only when 

one's purpose in moving to the new location betrays a lack of 

intention to remain. Here, however, the good faith of those 

seeking to establish that an incompetent individual has changed 

his domicile assumes an added significance. Under the 

Rehabilitation Act, it may interfere with the essential purpose 

of the program for DPW to recognize a change of domicile for 

individuals whose only motive in moving is to obtain state funded 

services. Accordingly, under the Rehabilitation Act, the good 

faith of those seeking to establish a change of domicile for an 

incompetent individual seeking state funded services may be 

tested by examining the motive behind the change of residence. 

 Objective factors that will be probative of good faith 

will include the length and likely duration of the individual's 

residence, his financial or other connections to the locale, and 

the quality of his contacts with other locations. In other 
16 

contexts, there is no minimum period of residence required for 

establishing a new domicile. But where we are examining the 

motive of those seeking to establish a change of domicile for the 

purpose of receiving state-funded services under the 

Rehabilitation Act, duration of residence will be of particular 

significance. Also relevant, although not dispositive, is the 

individual's subjective attachment to his home. We recognize 

that incompetent individuals will have varying abilities to 

express their subjective preferences and the weight attributable 

to this factor will vary accordingly. Because this inquiry is 

directed at discovering the extent of the individual's attachment 

to Pennsylvania, a residency determination made on the basis of 

these factors will not alter the essential nature of the program. 

 The opinions of parents or guardians who are acting in 

the incompetent individual's best interest also will be 

probative. We note that this last factor is different from the 

kind of surrogacy we rejected in Easley v. Snider, 36 F.3d 297 

(3d Cir. 1994). In Easley, mental alertness was part of the 

essential nature of a program designed "to allow the physically 

disabled to live in the least restrictive environment as 

independently as possible." Id. at 302. Accordingly, we held: 

[The use of surrogates] would shift [the 

focus of the program] from the provision of 

attendant care and its societal objectives 

for the physically disabled to personal care 

services to the many thousands of physically 

disabled who are often served by other 

specially designed state programs. The 

proposed alteration would create a program 

that the State never envisioned when it 

enacted the Care Act. 
17 

Id. at 305. But here, mental capacity to choose domicile is not 

a criterion fundamental to participation in the program. A 

parent or guardian's interpretation of the individual's wishes 

will not disrupt the objectives of the program. 

B. 

 DPW also objects that administration of a substantial 

contacts test would be unduly burdensome. "Accommodations that 

are `reasonable' must not unduly strain financial resources." 

Nathanson v. Medical College of Pennsylvania, 926 F.2d at 1386. 

DPW, however, has not shown that a "substantial contacts" test 

would create an undue financial burden. DPW predicts a 

substantial contacts test would be susceptible to abuse, opening 

the door "for out-of-state parents to attempt to present sham 

residency claims on behalf of their incompetent children," and 

"encourag[ing] counties to place their residents in other 

counties' facilities, if not out-of-state facilities," and 

abandon their funding obligations by declaring them residents of 

the new county or state. We are skeptical of these predictions. 

First, DPW has offered no evidence that the proposed modification 

would likely lead to these results. Second, we have injected a 

threshold good faith inquiry to forestall this kind of abuse and 

these hypothesized strategies would likely fail a substantial 

contacts test that looks at duration of residence, quality of 

contacts to the new locale, and relationships to other locations. 

And finally, we require the Commonwealth to consider substantial 

contacts only when traditional residency tests discriminatorily 

exclude retarded individuals. 
18 

 As we have noted, the Juvelises have conceded that Niki 

lacks the mental capacity to choose a domicile, but his parents 

are clearly acting in good faith and in his best interests when 

they assert Niki is domiciled in Pennsylvania. DPW has not met 

its burden of proving that it would impose an undue burden on the 

Commonwealth to consider substantial contacts to determine 

whether Niki has established domicile in Pennsylvania.0

VII. 

 We will affirm the district court's judgment that DPW 

has failed to carry its burden of proving that it would interfere 

with the essential nature of the program or be unduly burdensome 

to allow Niki to rebut the presumption that he maintains his 

parents' domicile. 

 Nevertheless, our inquiry does not end there. Niki 

must establish that he has in fact changed his residence from 

that of his parents. The Juvelises have pointed to several 

 

0

DPW claims there is no presumption that the profoundly retarded 

cannot prove the requisite intent. According to the agency, 

residency determinations are made "on a case-by-case basis," and 

the policy "says nothing whatsoever" about who can or cannot form 

the requisite intent. Indeed, as plaintiff points out, if Niki 

were capable of declaring an intent to make Pennsylvania his 

home, DPW would not accept such a declaration as determinative, 

but would consider other factors that supported or 

contradicted such a conclusion. 

 Nevertheless, DPW insists that consideration of 

substantial contacts to Pennsylvania would be unworkable. It 

appears to us that, in practice, DPW relies exclusively on its 

presumption that a profoundly retarded individual takes the 

domicile of his parent as of the time he turned eighteen. 

 DPW also has pointed out that the Juvelises did not 

seek review of DPW's eligibility decision. Given DPW's 

application of its presumption that profoundly retarded 

individuals cannot manifest an intent to change domicile, we 

believe a request for review would have been futile. 
19 

objective factors that support the conclusion that Niki has 

established a domicile in Pennsylvania: Niki has resided at 

Melmark for eighteen years, all of his friends and possessions 

are there, his parents have paid substantial fees to the Delaware 

County home over those years, and it is expected that Niki will 

continue to reside in Pennsylvania for the rest of his life. 

Furthermore, within his limited ability to do so, Niki has 

expressed a subjective attachment to Melmark.0 Finally, his 

parents are clearly acting in good faith and in Niki's best 

interest in asserting that Melmark is Niki's home. We conclude 

that Niki has made a sufficient showing to establish a change of 

domicile to Pennsylvania. 

VIII. 

 DPW has failed to prove that a modification of its 

policy to allow Niki to show a change of domicile to Pennsylvania 

would be unduly burdensome. Accordingly, we hold that a mentally 

incompetent individual who has been denied state funded services 

by operation of the presumption that incompetents cannot intend a 

change of domicile may rebut that presumption. The individual 

must demonstrate good faith and must show substantial contacts to 

Pennsylvania in order to establish that he has adopted a 

Pennsylvania domicile. We believe the Juvelises have made the 

requisite showing and will affirm the judgment of the district 

court. 

 

0

Melmark is the only home he remembers, he repeats the word 

"Melmark" when he is off the grounds, and he turns his wheelchair 

and heads towards his cottage at Melmark when told it is time to 

go home. 
20