State, former elder care advocate reach settlement

Sondra Everhart

A former state official, who was fired for allegedly unlawfully releasing records of boarding home conditions to a newspaper, has reached an out-of-court settlement with the administration of Gov. Susana Martinez. Terms of the deal weren’t immediately disclosed.

Sondra Everhart, a former chief advocate for residents of nursing homes and assisted-living facilities, sued the Department of Aging and Long-Term Services after her dismissal in June 2016.

A few months prior to her firing, Everhart had provided records of boarding home conditions to the Albuquerque Journal in response to a public-records request.

The Journal later published a series of stories on substandard conditions of boarding homes in Las Vegas, N.M. The homes, which are largely unregulated, serve mentally ill patients released from the state psychiatric hospital in Las Vegas.

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 Everhart, who had served more than a decade as the state long-term care ombudsman.

The lawsuit alleged that department managers targeted and harassed Everhart and illegally terminated her 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.

Everhart, in an interview Monday, said she was satisfied with the settlement but couldn’t disclose details for six months because of a confidentiality agreement.

Generally, under state law, settlements made by the state Risk Management Division don’t become public record for six months after they are entered.

Linda Hemphill, an attorney for Everhart, said she and co-counsel Diane Garrity were “extremely pleased” with the settlement. “Unfortunately, we are prohibited by statute from sharing the details at this time,” Hemphill said.

A spokesman for the Department of Aging and Long-Term Services didn’t respond to a request for comment.

Attorneys for the department and Everhart filed an agreement June 15 in state District Court in Santa Fe to have Everhart’s case dismissed.

Employees in the ombudsman office make regular visits to long-term care facilities to investigate complaints, help resolve resident concerns and ensure quality care.

The U.S. Older Americans Act outlaws “willful interference” in the duties of long-term care ombudsmen, members of a nationwide network of federally funded advocates for residents of nursing homes and assisted-living facilities.

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 employee, earning about $81,000 a year.

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

The department said Everhart was doing a “great job” until she broke the law by releasing the boarding home records to the Journal.

All ombudsman records pertaining to clients, patients and residents are confidential and don’t have to be disclosed under the 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 reports “imply the identities of complainants and residents, and include identifying information such as place of residence, and in some instances, age and circumstances of boarding.”

Contact Thom Cole at 505-986-3022 or tcole@sfnewmexican.com.