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AHCA EMERGENCY RULES ON VACCINATIONS & MASKING AND REFRESHER ON OSHA MASKING REGS

This Florida Senior Living Association's Administrative Rule Review reports on recently proposed regulatory changes affecting Florida’s ALFs as a service to FSLA members.

EXECUTIVE SUMMARY: On July 3, 2023, AHCA published Emergency Rules 59AER23-1 and 59AER23-2, which implement requirements from SB 252,Protection from Discrimination Based on Health Care Choices


The intent of the Legislature in enacting this legislation is that Floridians be free from: (1) mandated facial coverings; (2) mandates of any kind relating to COVID-19 vaccines; and (3) discrimination based on such vaccination status.


To implement this intent, CS/SB 252 provides that [information modified to demonstrate applicability to ALFs and independent living]:


COVID-19 Vaccination, Recovery & Testing Status


ALFs and independent living may not discharge or refuse to hire a person; deprive or attempt to deprive a person of employment opportunities; adversely affect a person’s status as an employee or as an applicant for employment; or otherwise discriminate against a person based on knowledge or belief of the person’s status relating to COVID-19 vaccination, postinfection recovery, or failure to take a COVID-19 test. For matters relating to non-COVID-19 vaccines, the business entity shall provide for exemptions and reasonable accommodations for religious and medical reasons in accordance with federal law.


Face Masks


Independent living (effective 6/1/23): Independent living may not require a person to wear a face mask, a face shield, or any other facial covering that covers the mouth and nose. Independent living may not deny any person access to, entry upon, service from, or admission to such entity or otherwise discriminate against a person based on such person’s refusal to wear a face mask, a face shield, or any other facial covering that covers the mouth and nose. NOTE – this does not apply if DOH standards for occupational or laboratory safety require otherwise. DOH has adopted emergency rules 64DER23-5 and 23-5 (which are substantially the same as 59AER23-1 and 23-1 below).


ALFs (effective 8/1/23): ALFs shall establish facial covering policies and procedures for their respective health care settings, if the ALF requires any individual to wear a facial covering for any reason. Such policies and procedures must comply with AHCA rules and must be accessible from the ALF’s home page website or conspicuously displayed in the lobby of its health care service setting or settings. ALFs may not require any person to wear facial covering for any reason unless the requirement is in accordance with AHCA rules and the businesses policies and procedures for facial coverings. ALFs in violation thereof are subject to disciplinary action.


AHCA is required to adopt emergency rules, which are: 59AER23-1 – which contains definitions; and 59AER23-2 - which contains standards for the appropriate use of facial coverings for infection control, namely:


  • Health care providers may choose to require a patient to wear a facial covering only when the patient is in a common area (e.g., areas where patients are not treated, diagnosed, or examined) and is exhibiting signs or symptoms of or has a diagnosed infectious disease that can be spread through droplet or airborne transmission.


  • Health care providers may choose to require a visitor to wear a facial covering only when the visitor is:

  • Exhibiting signs or symptoms of or has a diagnosed infectious disease that can be spread through droplet or airborne transmission,

  • In sterile areas of the health care setting or an area where sterile procedures are being performed,

  • In an in-patient or clinical room with a patient who is exhibiting signs or symptoms of or has a diagnosed infectious disease that can be spread through droplet or airborne transmission, or

  • Visiting a patient whose treating health care practitioner has diagnosed the patient with or confirmed a condition affecting the immune system in a manner which is known to increase risk of transmission of an infection from employees without signs or symptoms of infection to a patient and whose treating practitioner has determined that the use of facial coverings is necessary for the patient’s safety.


  • Opt-Out Requirements are as follows:

  • Health care providers who choose to require a facial covering for any patient must include in the policy a provision for the opting-out of wearing a facial covering. Such policy must be in accordance with the Florida Patient Bill of Rights and Responsibilities, section 381.026, F.S. (e.g., generally covering rights to dignity, information, access to health care, experimental research, and knowledge).


  • Health care providers who choose to require a facial covering for any visitor must include in the policy a provision for the opting-out of wearing a facial covering if an alternative method of infection control or infectious disease prevention is available.


  • Health care practitioners and health care providers must allow an employee to opt out of facial covering requirements unless an employee is:

  • Conducting sterile procedures,

  • Working in a sterile area,

  • Working with a patient whose treating health care practitioner has diagnosed the patient with or confirmed a condition affecting the immune system in a manner which is known to increase risk of transmission of an infection from employees without signs or symptoms of infection to a patient and whose treating practitioner has determined that the use of facial coverings is necessary for the patient’s safety,

  • With a patient on droplet or airborne isolation, or

  • Engaging in non-clinical potentially hazardous activities that require facial coverings to prevent physical injury or harm in accordance with industry standards.

OSHA RESPIRATORY PROTECTION GUIDANCE


While the focus is on the new state emergency rules, be mindful that federal rules and regulations can still apply.


OSHA also has guidance designed specifically for nursing homes, assisted living, and other long-term care facilities (LTCFs). As summarized herein, the guidance focuses on protecting workers from occupational exposure to SARS-CoV-2 by the use of respirators, primary reliance on engineering and administrative controls for controlling exposure is consistent with good industrial hygiene practice and with OSHA’s traditional adherence to a “hierarchy of controls.”


Under this hierarchy, engineering and administrative controls are preferred to personal protective equipment (PPE). Therefore, employers should always reassess their engineering controls (e.g., ventilation) and administrative controls (e.g., hand hygiene, physical distancing, cleaning/disinfection of surfaces ) to identify any changes they can make to avoid over-reliance on respirators and other PPE.


Even when control strategies are in place, PPE, including respirators, will be needed for workers when close contact with someone who is known or suspected of having COVID-19 cannot be avoided.


Whenever respirators are required, employers must implement a written, worksite-specific respiratory protection program (RPP), including medical evaluation, fit testing,2 training, and other elements, as specified in OSHA’s Respiratory Protection standard (29 CFR 1910.134). The key elements of an RPP that employers must implement when any of their staff are required to wear respirators include the following:


  • Assign a suitably trained program administrator to oversee all elements of the RPP. This can be an infection prevention and control practitioner or a nurse administrator. If there are no staff members suitably trained to be the program administrator, consider hiring a local industrial hygiene consulting service to help establish a RPP or contact OSHA’s On-Site Consultation Program.


  • Implement and maintain a written RPP that details worksite-specific procedures and elements for required respirator use (e.g., medical evaluation, fit testing, training, maintenance, etc.). Certain program elements may also be required by OSHA for voluntary respirator use in order to prevent potential hazards associated with the use of a respirator.


  • Conduct a risk assessment to identify which workers are at risk of exposure to any airborne hazards (e.g., SARS-CoV-2, tuberculosis [TB], Legionella, certain hazardous chemicals). Such workers could include: any staff (whether clinical or not) in close contact (less than 6 feet) with residents with confirmed or suspected COVID-19 (e.g., during bathing, dressing, toileting, and direct clinical care); clinical staff performing aerosol-generating procedures5 (e.g., respiratory therapy, open suctioning of airways, BiPaP and CPAP); cleaning staff; maintenance staff; and visiting practitioners (e.g., physicians or physical therapists who do not normally work at that facility).


  • Implement procedures for selecting the appropriate type of respirator(s) for the hazard, whether it be an infectious agent (e.g., SARS-CoV-2) and/or a hazardous chemical. The program administrator is responsible for identifying which type(s) of respirator is suitable based on the hazard(s), workplace factors, and user factors. OSHA’s Small Entity Compliance Guide for the Respiratory Protection Standard can be a useful tool for assisting in general respirator selection.


  • Select from NIOSH-approved respirators and be cautious of counterfeit respirators, which often come to the commercial market during pandemics. Employers can access NIOSH’s NIOSH-Approved N95 Particulate Filtering Facepiece Respirators and Counterfeit Respirators / Misrepresentation of NIOSH-Approval to determine if the respirator model they are considering is NIOSH-approved.


  • During times like the present pandemic, when there are increased demands on the supply chain for N95 FFRs, consider alternatives to N95 FFRs, including other FFRs (e.g., P100s, N99s), reusable elastomeric (rubber) respirators, and powered air purifying respirators (PAPRs). While the initial investment for elastomeric respirators and PAPRs may be greater than for N95 FFRs, purchasing these types of respirators can often lead to cost savings over the long-term since they are reusable and can also help reduce the impact of supply chain disruptions. In addition, loose-fitting PAPRs do not require fit testing, which can lead to further cost and time savings for employers.


  • Choose eye and face protection that can be worn safely together with the type of respirator being used, meaning that care must be taken to ensure that the eye or face protection will not interfere with the seal of the respirator.


  • Implement procedures for performing medical evaluations of workers required to use respirators to determine their ability to safely wear a respirator prior to needing to wear one in the workplace. Identify a physician or other licensed healthcare professional to conduct the medical evaluations and maintain confidentiality.


  • Ensure that any worker using a tight-fitting respirator (e.g., N95 FFR) is fit-tested prior to initial use of the respirator, whenever a different respirator size, style, model or make is used, and at least annually thereafter. Passing a fit-test is important because it ensures that the size, make, and model of the respirator can provide a proper facial seal to offer the expected level of protection to the wearer.


  • Ensure that only OSHA-approved fit test protocols (which can be found in 29 CFR 1910.134, Appendix A) are used for fit testing. If you are having difficulty obtaining commercially available fit-testing solutions required for some qualitative fit tests due to limited commercial supplies, refer to OSHA’s/NIOSH’s guidance for Preparing Solutions for Qualitative Fit Testing from Available Chemicals, or con­sider switching to a quantitative fit test protocol or contracting with a reputable occupational health clinic that provides fit-testing services.


  • Establish procedures and schedules for the maintenance and storage of any respirators used for more than a single use (e.g., procedures for cleaning, disinfecting, storing, repairing, discarding). Note that while N95 FFRs are meant to be discarded after each use, CDC has developed contingency and crisis strategies, including reuse and decontamination of N95 FFRs, to help healthcare facili­ties conserve their supplies in the face of shortages.


  • Provide effective training to workers required to wear respirators. Training must be conducted in a manner that is understandable to workers, meaning that your training program should be tailored to the education level and language background of your workers.


  • Train workers who wear respirators on: how to properly put them on and take them off; how to conduct proper user seal checks; how to recognize respiratory hazards in their workplace; the limitations and capabilities of respirators; and how to recognize the medical signs and symptoms that may prevent or limit effective respirator use. Ensure that they can demonstrate the knowledge to safely and correctly use their respirators.


  • Conduct periodic evaluations of the workplace to ensure that your written RPP is being properly imple­mented and is up-to-date, and to ensure that workers are using their respirators properly. Solicit input from workers (and union representatives, if applicable) to provide feedback on the program.

Additional control strategies for preventing exposure to SARS-CoV-2 in LTCFs can be found in OSHA’s COVID-19 Guidance for Nursing Home and Long-Term Care Facility Workers and CDC’s Nursing Homes and Long-Term Care Facilities.


OSHA requirements for other PPE (e.g., eye protection, protective clothing) can be found in OSHA’s General PPE standard (29 CFR 1910.132) and Eye and Face Protection standard (29 CFR 1910.133).


Please contact Jason Hand, FSLA's Vice President of Public Policy & Legal Affairs, for more information!

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