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| Gary Hein and his wife, Ann Severine, who lives in the memory care unit of the El Castillo retirement community. |
Two Santa Fe men who sued for the right to visit relatives in hospice care during the state’s pandemic-related restrictions won one battle this week when a judge ruled an order authorizing nursing homes to create their own criteria for banning visitors was unconstitutional.
State District Judge Matthew Wilson on Monday ordered the secretary of the New Mexico Department of Health to strike the provision from the public health order and to revisit the order’s language with consideration for the constitutional rights of nursing home residents and their families.
“Loss of familial association for even minimal amounts of time constitutes irreparable injury,” Wilson wrote in his ruling. “Nothing, such as video conferencing, is a substitute for in-person, physical contact with a loved one.”
The ruling is a legal victory for Gary Hein and his lawyer, Pierre Levy, who both fought to be allowed to visit family members with dementia in the memory care unit at the El Castillo retirement community in downtown Santa Fe.
The win is symbolic for Levy — his mother died in September, just weeks after he filed a petition challenging the order.
But it may clear the way for Hein, 78, to visit his wife, 80-year-old Ann Severine, who Hein said is fading at El Castillo without the care and attention he had provided during daily visits before the pandemic struck.
“The harm that Mr. Hein and Ms. Severine are suffering by being denied their right to association outweighs any burden on the Secretary to make sure that the Constitution is taken into account when executive orders are issued,” Wilson ruled.
He granted Hein’s request for a preliminary injunction and directed the health secretary to provide a report within 21 days detailing changes to address the portion of the order identified as unconstitutional.
It’s still unclear, however, when or if Hein will be allowed to see his wife.
A spokeswoman for the Department of Health declined to comment on the case Tuesday.
Former Health Secretary Kathy Kunkel, who retired from the position earlier this year, is named as a defendant in the lawsuit, but Secretary-designate Dr. Tracie Collins is now subject to the order.
El Castillo CEO Al Jahner referred questions to attorney Carol Clifford, who said the facility would incorporate any changes to the state’s public health order into its visitation policy.
Clifford said privacy issues prevented her from commenting on whether Hein would be allowed to visit his wife.
Levy filed a complaint against the Department of Health on Sept. 3 seeking both a preliminary and permanent injunction. He argued the health order issued in March, which directed nursing facilities to limit visitations with patients receiving “end of life care” and authorized them to create criteria for restrictions, was arbitrary, capacious and unconstitutional.
Levy also argued the order was vague about the definition of end-of-life care and discriminated against patients and family members by barring them from visits while placing no restrictions on staff members.
Levy lost standing in the case when his mother died Sept. 12, according to court records.
“As with a lot of situations involving COVID, it’s been an extremely painful experience,” Levy said in an interview Tuesday.
But he didn’t give up.
After his mother’s death, he filed an amended complaint on behalf of Hein. The two had crossed paths in El Castillo’s memory care unit over the years.
“He was frequently there and we became acquainted because he was devoted to his wife and I was devoted to my mother,” Levy said. “And both he and I wanted to make sure our respective family members had love, guidance and support.”
Hein told the court at a recent hearing he and his wife had met in 1987, married in 1999 and moved to El Castillo from Eldorado in 2014.
She was moved to the memory unit in 2016, he said, adding he visited her daily to give her the individual attention and loving care staff didn’t have time to provide.
He brushed her hair and sometimes her teeth “because good dental care was important to both of us,” he said. He also picked out her clothes and took her to get her hair and nails done.
Sometimes they took walks together.
“We were active people before we came to El Castillo,” Hein said on the stand, “and I tried to make her retain some of that activity. It kept her alert and from being just a blob, a vegetable.”
Hein said his wife “enjoyed being in the wild,” so sometimes they would take a drive to the Santa Fe ski basin. Other times, he said, he would sit with his arm around her while they watched television together.
“I was trying to make an abnormal situation more normal,” Hein said.
But since the lockdown in March, Hein told the judge, he’d only been allowed to see Severine a handful of times — twice during socially distanced visits and several times during “window visits,” in which a nurse would push his wife’s wheelchair up to a window so they could see each other.
During the first socially distanced visit, Hein said, he touched his wife’s leg and was warned by a nurse that if he did it again he would no longer be allowed to see her in person.
Hein said he stopped the window visits because they seemed to upset his wife.
“She seemed confused,” he said. “She seemed bewildered that I was there, but not.”
Hein said he’s had in-person contact with his wife once since the lockdown, when he took her to a dentist to address a lost crown. After they were able to touch and be together, he said, his wife became more verbal.
Now he said, he visits her via video once a week and sends her notes and photographs through staff.
But her condition has deteriorated, he said, and so has his.
“Prior to the lockdown, she was conversant and we could talk to each other,” Hein told the judge. “Now, we don’t.”
Before the lockdown, Hein said, his wife was still an active person. “Today, he told the court, she inhabits a body … [but] a lot of the personality and life is leaving.”
“I guess I’m turning inward, too, in a way,” Hein said at the hearing. “I don’t go out of the apartment much. I go to the grocery store. But I am isolating because I don’t want to risk being a liability to her should I get to visit her again.”
Wilson noted in his ruling that while several employees of El Castillo had tested positive for the virus, Hein had tested negative nearly a dozen times.
Levy cited a recent U.S. Supreme Court ruling in his motions, quoting passages that stated “even in a pandemic, the Constitution cannot be put away and forgotten,” and “even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”
“There is no dispute that the pandemic is dire and that we are living through the worst public health crisis in over one hundred years,” Levy wrote. “There is no dispute that the Secretary is, in the first instance, tasked with safeguarding public health and has the expertise and resources to bear to carry out this task. Rather, the issue presented is whether, despite these critical times, the Secretary can disregard or ignore the United States and New Mexico Constitutions. The law is clear that she cannot.”
Levy argued that while public officials have some leeway in issuing emergency orders in times of crisis, officials must ensure the restrictions are “the most narrowly tailored means available to satisfy a compelling state interest.”
The Department of Health failed to do that, he said, by failing to review the restrictions and by allowing nursing facilities carte blanche to come up with their own criteria regarding who could visit and who could not.
“We’re hopeful he’ll be able to have in-person visits with his wife soon,” Levy said of Hein.
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