A New Mexico judge this week decided in favor of 78-year-old Gary Hein, who sued the state for keeping him apart from his wife, who currently lives in a nursing home, during the coronavirus pandemic, according to local reports.
The New Mexico Health Department must revise a provision enacted in March allowing nursing homes to make their own rules regarding visitor bans, State District Judge Matthew Wilson ordered Monday after hearing Hein’s case, the Santa Fe New Mexican reported.
“Loss of familial association for even minimal amounts of time constitutes irreparable injury,” Wilson’s ruling states, according to the outlet. “Nothing, such as video conferencing, is a substitute for in-person, physical contact with a loved one.”
The public health order regarding visitation must be revised in consideration of the constitutional rights of residents and families, he ruled. The New Mexico Department of Health did not immediately respond to an inquiry from Fox News.
Hein’s wife, 80-year-old Ann Severine, was living with dementia at the memory care unit in the El Castillo retirement community in Santa Fe. Hein and his attorney, Pierre Levy, argued that New Mexico’s provision, which prevented Hein from visiting his wife in person, is unconstitutional.
Hein’s mother died just weeks before he and Levy filed the petition challenging the New Mexico rule, SFNM reported. Levy did not immediately respond to an inquiry from Fox News.
Wilson ruled that the harm Hein and his wife “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.
Levy’s own widowed mother, Elaine Levy, is a resident with dementia at El Castillo’s memory unit, according to his separate complaint filed against New Mexico Health Secretary Kathyleen Kunkel.
“Prior to the denial of access and visitation imposed by [Kunkel’s] Order … Levy would visit Elaine Levy twice a day, five or six days a week, on a regular and prolonged basis, for five years of her residence in the Memory Unit. During those visits, [Levy] assisted in feeding and hydration, provided care, companionship, guidance, oversight and assurances to Eliane Levy’s quality of life,” the complaint reads.
Levy’s mother, whose condition is so severe that she is mute and wheelchair-bound, “has suffered a dramatic decline in her physical and mental health” due to visitor restrictions and isolation, Levy alleges, arguing that his mother has a constitutional right to see her family.
Carol Clifford, an attorney representing El Castillo, told SFNM that the nursing home would comply with any changes to the state’s public health order regarding visitation policy.
Nursing homes have come under intense scrutiny amid the pandemic due to visitation regulations and staffing shortages combined with long work hours that have led to deteriorating conditions at some homes.