On Feb. 10, 2023, the Department of Health (DOH) issued a Dear Administrator Letter (DAL) updating its guidance to providers regarding the State mask mandate. The Commissioner’s Determination on Masking in Certain Indoor Settings expired on Feb. 12, 2023, and this guidance was issued to provide direction with State-specific requirements going away.

This change does not simply mean that staff will be able to work unmasked. Rather, the Department requires health care personnel, including staff of certified home health agencies (CHHAs), licensed home care services agencies (LHCSAs), and hospice programs, to develop policies and procedures based on Centers for Disease Control and Prevention (CDC) guidance.

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.

Implications for Home Care and Hospice

When developing policies and protocols, home care and hospice providers must require a process to regularly review the Community Transmission Levels to determine possible protocol differences per county. Transmission rates may be different from county to county, and agencies with staff serving in multiple counties should be aware of the policy differences for the different rates.

Providers should also note that agency office staff not in a patient-facing setting providing administration, billing, supplies, and other non-patient-facing services are likely not subject to the CDC recommendations, as they are not patient-facing. Providers may want to develop policies and procedures for this subset of staff. LeadingAge NY will be confirming this interpretation with the Department.

When Transmission rates are High, but Community Levels are not High, home care and hospice agency staff may choose to be unmasked in areas restricted to patients. While this may be difficult to carry out in a home setting, this flexibility may be possible for agency staff serving in Article 28 facilities, assisted living programs, and other congregate care settings, where some patient-restricted spaces may be available. Providers should first ensure that they are following the facility’s guidance if it is more restrictive.

Adult Day Care Compliance

Adult day health care (ADHC) programs, both on- and off-site of their sponsoring nursing homes, will be required to establish policies and procedures for their personnel in accordance with the CDC recommendations, as they are considered nursing home staff. According to the July 2021 ADHC reopening guidance, registrants may remain unmasked in program as long as they are fully vaccinated, in which case they must remain masked and socially distanced. 

Social adult day care (SADC) programs, both those affiliated with nursing homes and standalone community models, are not a listed health care provider type under the DAL and may want to follow best practices as recommended by the CDC for community settings or the general public. They may also choose to follow the CDC recommendations for health care providers.

For other provider perspectives on the new masking guidance, click here (general information) and here (details on implications for ACF and assisted living providers).

Please feel free to contact us with questions or concerns on the new guidance and recommendations.

Contact: Meg Everett, meverett@leadingageny.org, 518-867-8871