New State Masking Guidance Requires Policies as Strict as CDC

The Department of Health (DOH) issued a Dear Administrator Letter (DAL) on Feb. 10, 2023, aligning the State's masking requirements for health care settings with the recommendations of the Centers for Disease Control and Prevention (CDC). The guidance provides that "all personnel, regardless of COVID-19 vaccination status, in a health care setting should wear an appropriate face mask according to CDC's Interim Infection Prevention and Control Recommendations for Healthcare Personnel During the Coronavirus Disease 2019 (COVID-19) Pandemic." DOH maintains that the CDC recommendations also apply to visitors age two and older and able to medically tolerate a mask. Effective Feb. 12, 2023, the DOH guidance supersedes all prior masking requirements pertaining to health care settings.

DOH DAL

The DOH guidance directs regulated facilities and entities (i.e., facilities or entities regulated under Articles 28, 36, and 40 of the Public Health Law) to develop and implement policies for personnel and visitors that are "at least as strict as CDC recommendations and may be stricter at the discretion of the facility." The DAL directs adult care facilities (ACFs) to follow CDC community guidance and CDC guidance for congregate living settings. More information for ACFs and assisted living is available here. Health care facilities not regulated under Article 28, 36, or 40 and private medical and dental practices are directed to "strongly consider adhering to" the CDC recommendations. Facilities and programs operating under the authority of another State agency should follow the masking requirements of that agency.

The DAL defines "personnel" to include paid staff, volunteers, and students. It notes that CDC masking recommendations are based on CDC "Community Transmission Levels," not "Community Levels."

CDC Recommendations

LeadingAge NY members are urged to read the CDC recommendations that are referenced in the new DOH guidance in their entirety. In a nutshell, those recommendations provide for the use of source control (i.e., a respirator or well-fitting face mask) as follows:

When SARS-CoV-2 Community Transmission Levels are High, source control is recommended for everyone in a health care setting when they are in areas of the health care facility where they could encounter patients.
- Health care personnel (HCP) could choose not to wear source control when they are in well-defined areas that are restricted from patient access (e.g., staff meeting rooms) if they do not otherwise meet the criteria described below (e.g., suspected or confirmed infection, exposure, reside or work in outbreak unit, or subject to public health authority recommendation to mask) and Community Levels are not also High. When Community Levels are High, source control is recommended for everyone.
When SARS-CoV-2 Community Transmission Levels are not High, health care facilities could choose not to require universal source control. However, even if source control is not universally required, it remains recommended for individuals in health care settings who:
- Have suspected or confirmed SARS-CoV-2 infection or other respiratory infection (e.g., those with runny nose, cough, sneeze); or
- Had close contact (patients and visitors) or a higher-risk exposure (HCP) with someone with SARS-CoV-2 infection, for 10 days after their exposure; or
- Reside or work on a unit or area of the facility experiencing a SARS-CoV-2 outbreak (universal use of source control could be discontinued as a mitigation measure once no new cases have been identified for 14 days); or
- Have otherwise had source control recommended by public health authorities.

Personnel, visitors, and patients/residents are permitted to choose to wear a mask, even it is not required by DOH or the CDC.

Providers should be aware of the distinction between "Community Transmission Levels" and "Community Levels." The Community Transmission Levels metric is generally used for purposes of infection prevention protocols in health care settings, whereas the Community Levels metric is used for the general public in community settings. More information about these metrics is available here. As of Feb. 8, 2023, most counties in New York State are experiencing a High Community Transmission Level and a Medium or Low Community Level.

The new DOH guidance and CDC recommendations must be read in conjunction with other CDC and Centers for Medicare and Medicaid Services (CMS) guidance applicable to specific health care settings. The following is a summary of the implications of the new guidance for nursing homes. Implications for ACFs and assisted living facilities can be found here, and for home and community-based services (HCBS) here. Information for senior housing providers is available here.

Implications for Nursing Homes

Nursing homes should develop masking policies and procedures that are at least as strict as CDC and CMS guidance. Policies may be more stringent, but should also take into consideration resident rights and quality of life. LeadingAge NY contacted DOH leadership about the absence of any reference to the CMS visitation guidance in the new DAL, and they confirmed via email that nursing homes should develop their policies in accordance with both CMS and CDC guidance.

Nursing home policies and procedures governing masking of staff and visitors should include checking the Community Transmission Levels and Community Levels weekly, and:

When Community Transmission Levels are High:
- Require all personnel to wear a mask, at a minimum when they are in areas of the facility where they could encounter patients;
  - May allow personnel to choose not to wear masks when they are in well-defined areas that are restricted from resident access when Community Levels are not also High and if the personnel are not suspected of infection, not exposed, not working in an outbreak unit, and not subject to a public health recommendation to mask;
- Require all visitors age two and older to wear a mask if able to medically tolerate one.
  - Consistent with CMS visitation guidance, allow visitors to unmask when alone in the resident’s room or in a designated visitation area and allow visitors and residents to share a meal, preferably in a separate area, provided that the visitor wears a mask (in accordance with CDC recommendations), except while eating or drinking.
When Community Transmission Levels are not High:
- May choose to allow personnel to not wear masks, provided that individuals who meet any of the following criteria must still wear masks:
  - Suspected COVID-19 or other respiratory infection;
  - Higher-risk exposure to COVID-19;
  - Work on a unit with a COVID-19 outbreak; or
  - Recommended to wear a mask by a public health authority (e.g., during the recommended period following recovery from COVID-19).
- Consistent with CDC and CMS guidance, may choose to allow visitors to not wear masks, although CMS notes that the safest practice is for residents and visitors to wear face coverings or masks. Visitors must wear masks during an outbreak or if they meet any of the following criteria:
  - Suspected COVID-19 or other respiratory infection;
  - Higher-risk exposure to COVID-19; or
  - Recommended to wear a mask by a public health authority (e.g., during the recommended period following recovery from COVID-19).

Facilities may elect to implement policies that require use of more protective masks (e.g., N95 or KN95 respirators) when Community Transmission Levels or Community Levels are High. The CDC recommends that facilities in counties with High Community Transmission Levels consider using N95 or higher-level respirators universally, or when caring for patients who are unable to use source control, or when the space is poorly ventilated. When caring for, or entering the room of, a resident with COVID-19, the CDC recommends the use of an N95 or higher respirator.

Notably, recommendations and requirements concerning resident masking remain unclear. The new DOH DAL references only masking policies for personnel and visitors and does not address masking of residents. The CDC guidance specific to nursing homes includes resident masking recommendations only in limited situations (i.e., for new admissions, those who leave the facility for more than 24 hours, those with confirmed COVID-19, and those who are being tested as part of an outbreak response). It is silent with regard to resident masking under ordinary circumstances. CMS has increasingly recognized the impact of COVID-19 measures on resident quality of life and has highlighted in the visitation guidance residents' right to make choices about aspects of their lives that are important to them. However, the communal activities section of the visitation guidance includes the following reminder: "The safest approach is for everyone, particularly those at high risk for severe illness, to wear a face covering or mask while in communal areas of the facility."

Influenza Masking Requirements

DOH also emphasizes that existing requirements remain in place for personnel to wear masks when influenza is prevalent if they are not vaccinated for influenza during the current flu season.

Contact: Karen Lipson, klipson@leadingageny.org