                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             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Precedential or Non-Precedential: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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          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



                        1
                                   __________________

                               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.

                                              2
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.


                                          3
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"


                                          4
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.


                                           5
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.




                                                 6
             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


                                           7
(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.


                                      8
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.




                                             9
            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,


                                                10
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:




                                     11
                 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


                                      12
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


                                     13
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


                                         14
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


                                     15
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.



                                         16
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.


                                            17
          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.

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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.

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