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Dare You Ask … Must You Wear a Mask? (The Saga Continues)

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September 3, 2022.   It’s hard to believe that the COVID19 pandemic is crawling toward its third birthday.  As a healthcare lawyer, the amount of new and ever-changing guidance has been a moving target and one that I have had to master proficiency with in order to keep the firm’s clients and organizations appropriately informed.  I have described this scenario as paving the road and learning to drive all at the same time.  Without question, it has been quite the challenge.

As we all move through the pandemic, it was to be expected, and frankly desired, that the governmental strictures on life in general would unclench.  However, medical practices have faced prolonged regulatory limitations with regard to COVID compliance over and above the average business, no doubt due to the heightened risks of exposure in the healthcare setting and in the best interests of patient health, safety, and well-being.  When DCA Administrative Order 2022-01 (“A.O. 2022-01”) came out on July 22, 2022 https://www.njconsumeraffairs.gov/COVID19/Documents/DCA-AO-2022-01.pdf, there was a gleam of hope by me and our clients that mask mandates for physician practices were going to be a thing of the past.  After all, it was issued by the agency that houses the New Jersey State Board of Medical Examiners.  Well, don’t be so sure.

On its face, A.O. 2022-01 seemed to be the magic elixir that vaporized a physician’s obligation to ensure physicians, staff, and patients continue to wear masks in private medical offices.  Leading up to its issuance,  physicians understood with crystal clarity that they were obligated to continue to mask in the hospital and surgicenter settings as the mask mandates from the New Jersey Department of Health continued to prevail.  From my observation, more than half of the firm’s clientele reconciled prior Executive Orders and Administrative Orders (citations omitted) to conclude that, although masking was still required in hospitals and other licensed facilities such was not the case in the private medical office setting.  I disagreed with them, and a fervent debate ensued for months.  I was torn between what I was reading, what agencies I was querying, and my clients’ own interpretations and wishes.  I did not want to be the one to squash the hopes and dreams of thousands of physicians.

When A.O. 2022-01 came out this Summer – an extremely vague and ambiguous administrative order I might add – the bounty of physicians in New Jersey have read it to state unequivocally that private medical offices in New Jersey are officially no longer required to have physicians, staff, patients, and visitors at the offices wear masks.  On behalf of Medical Staffs, societies, and associations the firm worked tirelessly to read, interpret, research, and investigate whether this indeed was true.  After all, A.O.  2022-01 modifies prior A.O. 2021-11, specifically applies to “health care professional offices” and “private practices” and states as follows:

“All health care professionals shall be required to practice in a manner that is consistent with all applicable guidance related to COVID-19 issued by the CDC, NJDOH, OSHA, and their local health department, including without limitation guidance applicable to: health care settings generally; dental or eye care settings specifically; health care practitioners; scheduling, screening, vaccination, and testing of patients and health care workers; infection control, source control, and prevention practices; workplace safety; contact tracing; and field-specific practice.”

Was this that wave of the wand that every New Jersey physician has been so patiently waiting for?  Nothing like an administrative order saying nothing substantive but merely referring licensed physicians to CDC, Department of Health, and OSHA guidance for their “answer”.  The questions seeking confirmation rolled into the firm like a tsunami.  I was simply not ready or comfortable to utter the word Y-E-S.

So, I did what any good sleuth should do under similar circumstances.  I asked the New Jersey State Board of Medical Examiners to weigh-in as there was a thirst for definitive clarity.  In response to the ask, according to a member of the licensing board, the Centers for Disease Control and Prevention and the New Jersey Department of Health currently recommend that masks be worn by staff, patients, residents, and visitors in healthcare settings, regardless of COVID-19 vaccination status and COVID-19 transmission levels.  Accordingly, pursuant to AO-2022-01, masking continues to be required in healthcare offices in New Jersey.

So, dare you ask, must you and those at your private practice wear a mask?  The answer is YES.  You may encounter backlash from staff, patients, and visitors about the continued mask mandate .  I recommend remaining calm and referring them to this September 2022 guidance.  Should the need arise for advice or intervention on this subject, feel free to contact the firm at (973) 998-8494 or Info@DocAdvocates.com.

Nan Gallagher, JD, Esquire 

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