State releases emergency rules on mandatory masking in health care settings

Doctors’ offices and hospitals can no longer require all visitors, patients, or employees to wear masks under a pair of emergency rules published by the administration of Gov. Ron DeSantis.

The Agency for Health Care Administration (AHCA) released a pair of emergency rules (59ER23-01 and 59ER23-2) on July 3 laying out the dos and don’ts of when facial coverings can be required in health care settings and opt-out requirements that must be offered.

Licensed health care providers and practitioners who will require masks or facial coverings must develop policies that are consistent with the requirements in the emergency rules by Aug. 1. 

Patients can only be required to wear masks if they are in the common area of the health care setting and are exhibiting signs or symptoms, or have been diagnosed with an infectious disease that can be spread through droplet or airborne transmission.

Visitors can also be required to wear a mask if they are headed to a sterile area of a facility or if they are coming to see a patient who has been diagnosed with an infectious disease or has a condition affecting their underlying immune system.

Health care providers and practitioners who require masks must offer patients, visitors and employees an “opt-out.”

The opt-out provision differs depending on the situation.

The opt-out policy provisions for patients, for instance, must be in accordance with what’s known as the Florida Patient’s Bill of Rights and Responsibilities. That law, initially passed in 1991, states that a “patient is responsible for following health care facility rules and regulations affecting patient care and conduct.”

Health care providers who require visitors to don facial coverings must include in their policies an opt-out provision if an alternative method of infection control or infectious diseases prevention is available.

The opt-out provision for employees is broader and allows employees to opt out of wearing a mask unless they are conducting sterile procedures, working in a sterile area, working with a patient with a compromised immune system or working with a patient whose treating practitioner has determined the use of a mask is necessary for the patient’s safety because the patient is deemed at risk of transmission of an infection from asymptomatic employees.

The emergency rules were published by AHCA and developed in conjunction with the Florida Department of Health (DOH). The agencies were required to develop the rules as part of SB 252, which passed during the 2023 Session and was signed by DeSantis in May. 

SB 252, sponsored by Sen. Colleen Burton, prevented the sunset of many prohibitions that the Legislature passed banning COVID-19 vaccination mandates and mask mandates in schools.

Hospitals and health care providers that run afoul of the new law are subject to disciplinary action from AHCA, which regulates health care facilities, or regulatory boards, such as the Board of Medicine or the Board of Osteopathic Medicine.

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