Senator David K. Karem

Majority Caucus Chairman

2439 Ransdell Avenue

Louisville, KY 40204

Dear Senator Karem:

You have requested an opinion from this Office on an issue relating to Governor Jones' proposed health-care reform package. Specifically, you ask how we should define the term "Kentuckian" for purposes of determining eligibility. You express concern that we can not afford to extend coverage to individuals who relocate in the state in order to avail themselves of improved benefits.

You have been asked to propose a suitable definition of the term, and request that this Office provide guidance regarding existing legal requirements and court tests to assist you in this task. We begin with an examination of the term "resident" as it is generally defined, and as it has been defined by the courts of the Commonwealth. We then turn to an analysis of the term as it is used in specific statutory contexts, for example, in determining eligibility for in-state tuition and medical assistance. Finally, we review health care legislation from other states to ascertain how this issue has been resolved elsewhere.

Black's Law Dictionary defines "residence" as:

Personal presence at some place of abode with no present intention of definite and early removal and with purpose to remain for [an] undetermined period, not infrequently, but not necessarily combined with [the] design to stay permanently. [Citation omitted.]

Residence implies something more than mere physical presence and something less than domicile. [Citation omitted.]

Black's Law Dictionary, 1308, 1309 (6th ed. 1990).⁽¹⁾ A "resident" is one "who occupies a dwelling within the State, has a present intent to remain within the State for a period of time, and manifests the genuineness of that intent by establishing an ongoing physical presence within the State together with indicia that his presence within the State is something other than merely transitory in nature." Black's Law Dictionary at 1309. "Legal residence," a term more closely akin to "domicile," is defined as:

The place of domicile or permanent abode, as distinguished from temporary residence. [The] [p]ermanent fixed place of abode which [a] person intends to be his residence and to which he intends to return despite temporary residences elsewhere or despite temporary absences. [Citation omitted.]

Black's Law Dictionary at 897.⁽²⁾

In Kentucky, the terms "residence" and "domicile" are frequently used as if they were identical in meaning. In St. John v. St. John, 291 Ky. 363, 163 S.W.2d 820, 822 (1942), a Kentucky court recognized that although "the term 'residence' has a much narrower technical significance than the term 'domicil[e]', the two terms are almost universally used interchangeably in statutes," and concluded that for purposes of satisfying the jurisdictional prerequisite to a divorce action, actual residence and domicil were equivalent. Continuing, the court observed:

It is difficult to enunciate an all inclusive definition of the term 'domicil[e]' but in a legal sense it is universally regarded as that place where a person has his fixed, permanent home, and to which he has, whenever absent, the intention of returning and from which he has no present intention of moving. It is further universally held that in order to acquire a domicil[e] all that is necessary is residence in the new locality and an intention to remain there, accompanied by an intention to abandon the old domicil[e]. As it has been frequently expressed, there must be a concurrence of the fact and the intent.

St. John, supra, at 822.⁽³⁾

Similarly, in Pettit's Ex'x v. City of Lexington, et al., 193 Ky. 679, 237 S.W. 391 (1922), a Kentucky court addressed the question of legal residence in the context of tax assessment, and held:

The question of legal residence is one of fact and intention. The foundational fact of residence conjoined with intention fixes the legal residence. But the fact is more powerful than the intention, for intention may be inferred from the fact alone, whereas the fact cannot be shown by or inferred from intention. The residence need not be continuous or for the greater part of the time, but there must be an abiding place, joined with an intention of constituting a legal residence, before it can be fixed as such. It is also true that every person must have such a residence, and that he can have but one, and that when once established it continues until he renounces it and acquires another.

Pettit's Ex'x, supra, at 392. Compare Burr's Administrator v. Hatter, 240 Ky. 721, 43 S.W.2d 26, 27 (1931) ("Legal residence is based upon fact and intention; that is, it is to be determined by location of the person and his intention to abandon a former domicile and establish a new one. Intention is the dominant factor and it is to be deduced from the facts in evidence conjoined with residence or location.")

Consistent with this view, in Erwin v. Benton, 120 Ky. 536, 87 S.W. 291 (1905), a Kentucky court opined that in determining residence for purposes of asserting the right to vote:

[I]n law, every person has a domicile. In some instances it may be different from his actual abode. Until he has changed it, which is a combination of act and intention, it continues to be his domicile in law. (Citation omitted.) Where one has had an actual domicile, and departs from it temporarily, intending to return, it will remain his legal domicile for all purposes.

Erwin, supra, at 294. Whether wrestling with the term "domicile" or "legal residence," Kentucky's courts have thus recognized that a person establishes residence by taking up a place of abode within the state with the intention to remain.

Kentucky's legislature has adopted this position in a number of statutes and regulations vesting specific rights or imposing specific duties on "residents" of the state. For example, in KRS 132.010(5), relating to the levy and assessment of property taxes, a "resident" is defined as:

[A]ny person who has taken up a place of abode within this state with the intention of continuing to abide in this state; any person who has had his actual or habitual place of abode in this state for the larger portion of the twelve (12) months next preceding the date as of which an assessment is due to be made shall be deemed to have intended to become a resident of this state.

Although the term "residence" is not defined in the divorce statutes, KRS 403.140(1)(a) also imposes a requirement of residence within the state for "180 days next preceding the filing of the petition" for dissolution of the marriage on one of the parties.

KRS 116.035 establishes specific guidelines which must be observed in determining the residence of a person who wishes to vote. That statute provides:

1) A voter's residence shall be deemed to be the place where his habitation is, and to which, when absent, he has the intention of returning;

2) A voter shall not lose his residence by absence for temporary purposes merely; nor shall he obtain a residence by being in a county or precinct for such temporary purposes, without the intention of making that county or precinct his home;

3) A voter shall lose his residence by removal to another state or county with intention to make his permanent residence there, or by removal to and residence in another state, with intention to reside there an indefinite time, or by voting there, even though he may have had the intention to return to this state at some future period;

4) The place where the family of a married man resides shall generally be considered his residence, unless the family so resides for a temporary purpose. If his family is permanently in one (1) place, and he transacts his business in another, the former shall be his residence.

KRS 116.035.⁽⁴⁾

Eligibility for medical assistance is determined by reference to federal laws and regulations pursuant to KRS 205.510. Kentucky's Medicaid program thus incorporates those federal eligibility guidelines codified at 42 C.F.R. § 435.403. Among the definitions appearing in this regulation, 42 C.F.R. § 435.403(i) provides that the state of residence is the state where the individual is:

(i) Living with the intention to remain there permanently or for an indefinite period (or if incapable of stating intent, where the individual is living); or

(ii) Living and which the individual entered with a job commitment or seeking employment (whether or not currently employed).

Kentucky's own administrative regulations contain guidelines relating to classification of residency for tuition and assessment purposes. 13 KAR 2:045, Section 2(6) defines "domicile" as "a person's true, fixed, and permanent home." That regulation further provides:

[Domicile] is the place where the person intends to remain, and to which the person expects to return without intending to establish a new domicile elsewhere. 'Legal residence' and domicile convey the same notion of permanence and are used interchangeably.

Criteria for establishing residency are set forth in Section 2 of the regulations and types of evidence to be considered for establishing domicile are set forth in Section 3. The following facts are deemed to have probative value in support of a claim for resident classification:

(a) Acceptance of an offer of full-time employment or transfer to an employer in Kentucky or contiguous area while maintaining domicile in Kentucky;

(b) Continuous physical presence in a nonstudent status for the twelve (12) months immediately preceding the last date for enrollment in the institution;

(c) Filing of Kentucky resident income tax return for the calendar year preceding the date of application for reclassification of residency status;

(d) Full-time employment of at least one (1) year while living in Kentucky;

(e) Attendance as a full-time, nonresident student at an out-of-state institution of higher education while determined to be a resident of Kentucky;

(f) Abandonment of a former domicile and establishing domicile in Kentucky with attendance at an institution of higher education following and only incidental to such change in domicile;

(g) Payment of occupational taxes in Kentucky;

(h) Payment of real property taxes in Kentucky;

(i) Payment of intangible personal property taxes in Kentucky;

(j) Ownership of real property in Kentucky, if the property was used by the student as a residence for at least six (6) months preceding the date of application for reclassification of residency status;

(k) Long-term lease (at least twelve (12) consecutive months) of noncollegiate housing;

(l) Kentucky automobile registration;

(m) Kentucky driver's license;

(n) Continued presence in Kentucky during vacation periods;

(o) Marriage to a Kentucky resident; and

(p) Registration as a Kentucky voter.

13 KAR 2:045 Section 3(4). Again, the common threads which run through these provisions are habitation in the state and the intent to remain.

We have examined health care legislation in Vermont, Hawaii, and Minnesota, to determine how these states resolved the question of eligibility. In Vermont, "residents" are assured access to quality health services through a health care system that is overseen by a Health Care Authority Board, and through a statewide health resource management plan linked to a unified health care budget. "Resident" is defined as:

[A] person who is domiciled in Vermont as evidenced by an intent to maintain a principal dwelling place in Vermont indefinitely and to return to Vermont if temporarily absent, coupled with an act or acts consistent with that intent.

Vt.Stat.Ann. tit. 18, § 9402(8)(1992).

Hawaii's health care system is also aimed at insuring comprehensive medical care for its residents but the relevant provisions do not define this term. The system is composed of five elements consisting of a Prepaid Health Care Act (Chapter 393, Hawaii Revised Statutes), Medicaid, a voluntary modified community rating, a State Health Insurance Program (Chapter 431-N, Hawaii Revised Statutes), and an ERISA exemption. The Prepaid Health Care Act mandates that employers provide health care coverage to their employees, subject to certain exclusions. Persons not covered under Prepaid Health Care or Medicaid and who are in need of economic assistance in health care coverage are referred to as "gap group individuals." These include the unemployed, dependents of low-income workers, part time workers, students, and others excluded from Prepaid Health Care. Hawaii's State Health Insurance Program provides subsidized basic benefits health insurance to these individuals.

Similarly, Minnesota's HealthRight legislation, codified at Minn.Stat.Ann § 62J. 01, et seq., creates a subsidized health insurance program for uninsured residents of the state, though again the term "resident" is not defined. Minnesota's system creates two low-cost insurance plans for small businesses, and expands a public employees' insurance plan to include private employers so that they can take advantage of pooling to secure lower rates or better benefits. The system also makes provision for farmers and self-employed persons by allowing state income tax deduction of 100 percent of the cost of health insurance premium. Apparently, neither Minnesota nor Hawaii share the concern you express relative to proof of residency since neither of their health care plans addresses the issue.

Our review of the authorities cited demonstrates that residence is established by an act coupled with intent. A person's residence is the place which he inhabits with the intention to remain there permanently. Whether such a definition is suitable in the context of Governor Jones' healthcare reform package will turn on the character of the proposed legislation. Our research suggests that legislation cannot address the many fact patterns that are bound to arise. We believe that the best approach is to include the standard definition of resident (or domiciliary), and grant the administering agency discretion to further define the term, as was done in the context of eligibility for in-state tuition. The long list of criteria in that regulation indicates the need for constant adaptation that is particularly suited for administrative regulation rather than statute.

Sincerely,

Chris Gorman

Attorney General

Amye B. Majors

Assistant Attorney General

1. Compare "domicile" and "residence." Although often used interchangeably, the terms "residence" and "domicile" are not synonymous. A person may have two places of residence, but only one domicile. "Residence means living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent home. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile." Black's Law Dictionary at 1309.

2. See also 25 Am.Jur.2d Domicil § 4 (1966). " 'Residence' may mean a temporary, permanent, or transient character; or it may mean one's fixed abode, depending upon the purpose of the particular object of its use.... Thus, in some instances, residence requires mere physical presence, while in others something more than physical presence is required and the element of intent becomes material, even where 'residence' is not deemed to be the equivalent of 'domicil.' "

3. Accord Russell v. Hill, Ky., 256 S.W.2d 508, 509 (1953) ("Although used interchangeably, [the terms 'domicil' and 'residence'] have a separate and distinct meaning. 'Domicil[e]' has a broader meaning than 'residence.' It includes residence but actual residence is not essential to retain a domicil[e] after it is once acquired. Residence is preserved by an act; domicil[e] by an act coupled with intent. While one may have only a single domicil[e], he may have several residences. Having acquired a legal residence and domicil[e] as contemplated by the statute, it can only be lost or changed by the exercise of a conscious volition.")

4. KRS 2.010 describes the mechanism by which a citizen of this state relinquishes his or her state citizenship:

When any citizen of this state, by deed in writing, in the presence of, and subscribed by, two (2) witnesses, and acknowledged or proved before the county judge/executive of the county in which he resides, or by open declaration made in such court and entered of record, shall declare that he relinquishes the character of a citizen of this state, and shall depart out of this state with the intention, in good faith, to remain absent therefrom, he shall, from the time of his departure, be considered as having exercised his right of expatriation, so far as regards this state, and shall not thenceforth be deemed a citizen thereof. When any citizen of this state shall reside elsewhere, and in good faith become a citizen of any other state, he shall not, while the citizen of the other state, be deemed a citizen of this state. No act of any citizen under this section shall have any effect if done while the United States is at war with a foreign power.