dissenting. I agree with much of what is stated in Justice Newbern’s concurring opinion. The standard for determining eligibility for the Elder Choices program is elusive. We cannot determine what it is from the record, and it is clear that Ms. Franklin did not know what criteria were at issue at her hearing. Indeed, her emphasis for qualifying for the program was her legal blindness — not mobility, feeding, or toileting. DHS, on the other hand, decided eligibility based on the latter factors. Without knowing precisely what the standard is, it is difficult for me to decide whether it is vague or not.
Assuming a DHS standard does exist for eligibility in Elder Choices, Ms. Franklin should be apprised of that standard before any hearing and given the opportunity to meet the criteria. That clearly did not occur in this case at the first hearing.
Accordingly, I would reverse and remand to circuit court with directions that a new hearing be conducted. If no standard exists for determining eligibility or if the standard is impermissibly vague, then a conclusion that DHS is acting arbitrarily is inescapable.