Friday, January 5, 2018

State paid $285K to settle suit by former elder care advocate

Sondra Everhart
Gov. Susana Martinez’s administration paid $285,000 to settle a lawsuit filed by the state’s former chief advocate for residents of nursing homes and assisted-living facilities.

Sondra Everhart, who served more than a decade as New Mexico’s long-term care ombudsman, had alleged she was illegally fired in June 2016 from her $81,000-a-year position with the Department of Aging and Long-Term Services.

The lawsuit said department managers terminated Everhart because of her advocacy on behalf of boarding home residents, her request that the agency do more to protect the elderly from financial exploitation, her attempts to combat Medicaid fraud by the department and her proposal that the ombudsman office be separated from the Department of Aging and Long-Term Services.

The department had denied the claims, saying Everhart was fired for unlawfully providing a newspaper with records of conditions in boarding homes in the Las Vegas, N.M., area. The homes serve people who have been released from the state psychiatric hospital in Las Vegas.

The settlement between Everhart and the administration brought to a close a short but very public dispute that proved costly for taxpayers.

Under the settlement, Everhart was allowed to retroactively resign, and the Department of Aging and Long-Term Services agreed to give her a neutral job reference. The two sides also agreed not to disparage each other.

The department didn’t admit wrongdoing as part of the settlement. Everhart can seek new employment with an executive agency after Martinez leaves office at year’s end.

A department spokesman didn’t respond to a request for comment. The settlement was signed by Myles Copeland, who has since resigned as head of the agency.

Everhart couldn’t be reached for comment.

The state Risk Management Division, which represented the administration in the litigation, released the settlement Wednesday in response to an open-records request.

The settlement was reached in June but was sealed for six months under New Mexico law.

Linda Hemphill, an attorney for Everhart, had said in June that she and co-counsel Diane Garrity were extremely pleased with the settlement.

Employees in the office that Everhart previously oversaw make regular visits to long-term care facilities to investigate complaints, help resolve resident concerns and ensure quality care. The jobs of long-term care ombudsmen are federally funded positions, and U.S. law prohibits state interference in the duties of the advocates.

In June 2015, Everhart complained to the federal government that the Department of Aging and Long-Term Services was interfering with her responsibilities, according to a document filed by Everhart’s attorneys in the lawsuit.

Shortly after she complained, the document says, the department sought outside legal advice on how to remove Everhart.

An attorney advised the department in September 2015 that the removal would likely run afoul of federal law and be retaliatory toward Everhart, the document says.

The Department of Aging and Long-Term Services has said the legal advice was sought because the agency was trying to determine whether it could make the ombudsman job exempt from the state’s merit-based civil service system. Everhart was a classified, or civil service, employee.

In agencies under the control of the governor, such as the Department of Aging and Long-Term Services, exempt employees serve at the will of the state’s chief executive.

After Everhart’s lawsuit was filed, the department said she was doing a great job until she broke the law by releasing the boarding home records to the Albuquerque Journal, which had filed an open-records request for the documents.

Everhart’s lawsuit said she was legally authorized to provide the records and that the allegation she did so unlawfully was a pretext for the Department of Aging and Long-Term Services to finally carry out its plan to get rid of her.

The Journal later published a series of stories on substandard conditions of boarding homes in Las Vegas. The homes are largely unregulated.

All ombudsman records pertaining to clients, patients and residents are confidential and don’t have to be disclosed under the state Inspection of Public Records Act. However, state regulations require that the ombudsman make a reasonable effort to grant a records request when it is possible to do so without revealing client identifying information.

Everhart redacted names of boarding home residents from the documents provided to the Journal, but the department has said the redactions were inadequate to protect all identifying information for complainants and residents.

The New Mexico Foundation for Open Government — a nonprofit supported by business, the news media and others — last year honored Everhart for releasing the boarding home records.

Full Article & Source:
State paid $285K to settle suit by former elder care advocate 

See Also:
Advocate for elderly fired

State, former elder care advocate reach settlement

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