The Rhode Island Department of Health (RIDOH) is filing a new emergency regulation, effective upon filing with the Rhode Island Secretary of State, entitled "Long-Term Care Facility COVID-19 Procedures" (216-RICR-40-10-27), that requires long-term care facilities, specifically nursing facilities and assisted living residences, to deny entrance to any visitors, including essential caregivers, who do not provide proof of vaccination against COVID-19. For those who are not vaccinated against COVID-19, proof of a negative polymerase chain reaction (PCR) COVID-19 test completed within the previous 72 hours or proof of a negative test result from a point-of-care rapid antigen test (e.g., Binax NOW) completed within the previous 48 hours must be provided to long-term care facility staff prior to entry.

Additionally, a visitor must keep a mask on throughout the duration of a visit with a resident.

RIDOH anticipates that these mandatory requirements will be time-limited. Rhode Island is experiencing a sharp increase in COVID-19 cases. The uptick in cases may be driven by the speed at which the new Omicron variant is spreading. Omicron arrived in the United States around Thanksgiving and during the week of December 12 - December 18, 2021, Omicron accounted for 73 percent of all new infections, according to the Centers for Disease Control and Prevention.
Rhode Island is in a period of high COVID-19 transmission. As of December 23, 2021, there were 728.5 new cases per 100,000 persons in the last seven days in Rhode Island, with a test positivity rate of 6.1 percent. Of approximately 1.1 million residents, 794,940 (72%) are fully vaccinated against COVID-19.

According to a report from the United Kingdom (UK), which may be predictive for the United States, Omicron cases were multiplying at a pace of 35 percent per day. "There are legitimate concerns about the trajectory of the newest variant, Omicron, and public health experts are paying close attention to the exponentially mounting cases, particularly in the United Kingdom, which in the past has functioned a canary in the Covid-19 coal mine for the U.S."

The relationship between case fatality rates and the Omicron variant is still emerging: "With Omicron, however, we not only don't see the rise in death rates that were associated with the first waves, but we actually see a continuing decline in death rates, despite a radical increase in cases. Whether or not this breakdown of the relationship between Omicron cases and deaths will play out in other countries, like the U.S., is hard to say," according to STAT NEWS reporter Duane Schulthess.

It is important to point out that earlier in the pandemic (2020), Kaiser Family Foundation reported that Rhode Island was one of two states that had the highest percentage (78%) of long-term care deaths as a share of total state deaths. COVID-19's impact on the vulnerable long-term care population has been dramatic and disproportionate to the general population. RIDOH's goal is to mitigate COVID's effects on this population by requiring long-term care facilities to screen visitors for proof of COVID-19 vaccination and to have visitors mask up while in the facility.

The COVID-19 pandemic continues to have a profoundly disruptive effect on the lives of Rhode Island's nursing home and assisted living residents and their families, particularly as the second year of the pandemic draws to a close.
These emergency regulations are intended to protect nursing home and assisted living residents' lives; maintain safety in Rhode Island long-term care facilities; and avoid imminent peril during this challenging time by requiring proof of vaccination against COVID-19 and mask-wearing throughout the duration of a visit with a long-term care resident.

216-RICR-40-10-27

The Statement of Reasons for Finding of Imminent Peril

As of July 6, 2021, powers conferred upon the governor by law for disaster emergency response cannot exceed a period of one hundred eighty (180) days from the date of the emergency order or proclamation of a state of disaster emergency, unless and until the general assembly extends the one hundred eighty (180) day period by concurrent resolution. Despite temporary preservation by law of the March 9, 2020 Declaration of Disaster and several related executive orders, a number of COVID-19-related executive orders have terminated. Certain provisions within those terminated executive orders remain necessary to protect the public health, safety, and welfare from imminent peril due to COVID-19. This emergency rule is being promulgated contemporaneously with a proposed final rule in order to prevent the spread of COVID-19 in healthcare settings.

216-RICR-40-10-1

The Statement of Reasons for Finding of Imminent Peril

As of July 6, 2021, powers conferred upon the governor by law for disaster emergency response cannot exceed a period of one hundred eighty (180) days from the date of the emergency order or proclamation of a state of disaster emergency, unless and until the general assembly extends the one hundred eighty (180) day period by concurrent resolution. Despite temporary preservation by law of the March 9, 2020 Declaration of Disaster and several related executive orders, a number of COVID-19-related executive orders have terminated. Certain provisions within those terminated executive orders remain necessary to protect the public health, safety, and welfare from imminent peril due to COVID-19. This emergency rule is being promulgated contemporaneously with a proposed final rule in order to prevent the spread of COVID-19 in healthcare settings.

216-RICR-40-10-2

The Statement of Reasons for Finding of Imminent Peril

On March 9, 2020, Governor Gina Raimondo declared a state of emergency for the State of Rhode Island “due to the dangers to health and life posed by COVID-19.” Seventeen months later, on August 19, 2021, Governor Daniel McKee declared a further state of emergency “due to the dangers to health and life posed by the [COVID-19] Delta Variant and other emerging [COVID-19] variants.” As of October 7, 2021, the COVID-19 pandemic has significantly impacted the State’s health care system, gravely exacerbating a pre-existing shortage of health care workers, including nursing assistants. The lack of nursing assistants jeopardizes the ability of the State’s health care system to provide critical care. This emergency regulation is meant to avoid the imminent peril posed by the lack of nursing assistants by taking advantage of the CMS blanket waiver of certain nurse aide training and certification requirements to provide for emergency temporary nursing assistant licensure.

216-RICR-40-05-22

The Statement of Reasons for Finding of Imminent Peril

On March 9, 2020, Governor Gina Raimondo declared a state of emergency for the State of Rhode Island “due to the dangers to health and life posed by COVID-19.” Seventeen months later, on August 19, 2021, Governor Daniel McKee declared a further state of emergency “due to the dangers to health and life posed by the [COVID-19] Delta Variant and other emerging [COVID-19] variants.” As of October 15, 2021, the COVID-19 pandemic has significantly impacted the State’s health care system, gravely exacerbating a pre-existing shortage of health care workers, including emergency medical services personnel. The lack of emergency medical services personnel jeopardizes the ability of the State’s health care system to provide critical care. This emergency regulation is meant to avoid the imminent peril posed by the lack of staff for private ambulances for basic life support transportation, which has severely impacted the ability of hospitals to discharge patients in a in a timely manner, thus not allowing patients to be admitted to the hospital from the emergency department.

216-RICR-20-10-2

The Statement of Reasons for Finding of Imminent Peril

The Delta Variant of the SARS-CoV-2 (Delta Variant) is now the dominant strain in Rhode Island and nationally. The Delta Variant differs from the original SARS-CoV-2 strain that hit Rhode Island in 2020 in that the Delta Variant may have a viral load 1,000 times greater than the original strain of SARS-CoV-2. The Delta Variant is more than twice as contagious as recent variants, and three to four times more contagious than the original strain, leading to significant increases in the rates of transmission among those who are not vaccinated as well as breakthrough infections (transmissions to those who are fully vaccinated). The increase in prevalence of the Delta Variant, as compared to the original strain of SARS-CoV-2, poses a significant and imminent risk to Rhode Islanders of increased symptomatic disease, hospitalization, and death. Therefore, the State needs to take additional measures to limit the spread of the Delta Variant for the protection, health, and safety of Rhode Islanders.

Since at least August 11, 2021, Rhode Island has been experiencing a high level of community transmission of the Delta Variant, defined as more than 100 cases per 100,000 people in the past seven days. To further demonstrate the extreme and devastating toll that the Delta Variant can have on a population within a short timeframe: on July 4, 2021, Rhode Island averaged only 11.2 new cases of COVID-19 per 100,000 people in the prior seven days; by August 16, 2021, it averaged 195.6 new cases of COVID-19 per 100,000 persons in the prior seven days, which represents almost 18 times as many new cases in just six weeks. And, as of July 4, 2021, there were 22 hospitalized COVID-19 patients, while on August 16, 2021, there were 103 hospitalized COVID-19 patients, or almost five times as many hospitalizations in the same period.

Although COVID-19 typically leads to less severe disease in children, there were 271 COVID-19 deaths among persons ages 5-17 years and 120 deaths among those 0-4 years in the United States through July of 2021. Additionally, SARS-CoV-2 infection in children can lead to multisystem inflammatory syndrome in children (MIS-C).

On August 19, 2021, Executive Order 21-86 declared a new state of emergency due to the Delta Variant, and with schools reopening in a matter of weeks, Executive Order 21-87 directed the Rhode Island Department of Health (RIDOH) to promulgate a protocol requiring universal indoor masking by all students (ages two and older), staff, teachers, and visitors to K-12 schools. In accordance with Executive Order 21-87, this Emergency Regulation is intended to take the place of the protocol issued by RIDOH in accordance with Executive Order 21-87. Although summer is, traditionally, a slower time for hospital admissions, Emergency Department admissions in all Rhode Island hospitals exceeded capacity during the summer of 2021. Based on information gained from recent conversations with Rhode Island hospital officials, RIDOH understands that most Rhode Island hospitals are at (or near) capacity and are facing staff shortages, as well as the threat that some incoming patients may have to be diverted to other hospitals. There has been a consistent increase in COVID-19 hospitalizations and deaths since July 4, 2021, and RIDOH modeling data project these numbers will continue to increase. This Emergency Regulation effectuates the directives set forth in Executive Order 21-87. Because of the nature and timing of the Delta Variant’s dominance in Rhode Island as well as the timing to start school, insufficient time existed to promulgate rulemaking through the typical Administrative Procedures Act process.

Students benefit from in-person learning, so safely returning from remote to in-person instruction is a priority. Vaccination is the best protection available against SARS-CoV-2 infection, but vaccines are only authorized for people 12 and older, so a significant portion of the student population will not be eligible for vaccination. At the same time, Rhode Island is seeing increasing numbers of COVID-19 cases in children and expects to see more childhood cases. Among the reasons for the expected increase in childhood cases is that the 2020-2021 school year saw reduced attendance in many schools due to hybrid learning schedules, so students and all other persons entering schools could easily maintain six-foot distances between themselves and wear masks. Despite those measures, Rhode Island saw approximately a 5% transmission rate in schools during the 2020-2021 school year.

The 2021-2022 school year features more children in school due to the elimination of hybrid learning schedules (thereby yielding a more populous indoor environment); unfortunately, that means students and staff will be less able to assure that six-foot distances between themselves are being maintained at all times. Additionally, the Delta Variant is more likely to affect children less than 12 years old than the original strain because children in that age group cannot be inoculated and the Delta Variant is more contagious than the original strain. cdc.gov/coronavirus/2019-ncov/variants/delta-variant.html (last updated August 26, 2021). Taking into consideration SARS-CoV-2 can infect persons who are fully vaccinated combined with increased, denser school populations and an easily communicable viral strain, masking will be the best protective measure available to the grade school community as a whole, making it absolutely imperative that all persons entering a school, including students, wear masks while indoors to help prevent the transmission of SARS-CoV-2 to students, and from students to others. If masking in schools were not mandated, many people would choose not to mask in schools; as a result, there would be a higher risk of SARS-CoV-2 transmission among students, teachers, and other staff members in the K-12 . More viral transmission means an increased risk of subsequent viral complications, including potentially death, as well as ongoing transmission risk to any person in contact with  an infected student, teacher, or staff member (whether asymptomatic, pre-symptomatic, or symptomatic).

There is significant evidence that masking is effective in reducing transmission of SARS-CoV-2, including variants. See e.g., cdc.gov/coronavirus/2019-ncov/science/science-briefs/masking-science-sars-cov2.html#anchor_1619457210222 (last updated May 7, 2021); cdc.gov/mmwr/volumes/70/wr/mm7010e3.htm (published March 12, 2021); cdc.gov/mmwr/volumes/70/wr/mm7036a3.htm  (published September 10, 2021); cdc.gov/mmwr/volumes/70/wr/mm7007e1.htm  (published February 19, 2021); cdc.gov/mmwr/volumes/70/wr/mm7035e2.htm  (published September 3, 2021).   Research also supports that mask-wearing has no significant adverse health effects for wearers. cdc.gov/coronavirus/2019-ncov/science/science-briefs/masking-science-sars-cov2.html#anchor_1619457210222 (last updated May 7, 2021). The reason masks are effective in limiting the spread of SARS-CoV-2, including the Delta Variant, is because the disease is transmitted predominately by inhalation of respiratory droplets generated when people exhale in any manner (i.e., through coughing, talking, or breathing). Masks are primarily intended to reduce the emission of virus-laden droplets from someone who is infected with SARS-CoV-2. This includes people who may be asymptomatic or pre-symptomatic and may be unaware of their infectiousness to others—more than 50% of transmissions are estimated to result from asymptomatic or pre-symptomatic transfers. Masks also help reduce inhalation of these droplets by the mask wearer.

Moreover, several trusted, reputable, and recognized organizations, after conducting reviews of their own that passed scientific muster, have concluded that the use of masks and cloth face coverings is an important public health approach to slow the transmission of COVID-19, including the Delta Variant and others. In July 2021, the American Academy of Pediatrics (AAP) recommended that all children over the age of two wear masks, regardless of vaccination status, when returning to school this fall. https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/clinical-guidance/covid-19-planning-considerations-return-to-in-person-education-in-schools/.Similarly, as of August 4, 2021, the Centers for Disease Control and Prevention (CDC) updated its guidance to recommend universal indoor masking for all students (ages two and older), staff, teachers, and visitors to K-12 schools, regardless of vaccination status, due to the circulating and highly contagious Delta Variant. See Updates as of August 4, 2021, cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-guidance.html

Finally, the majority of local education agencies in Rhode Island have now taken action to protect students, teachers, and other school personnel and to support safe, in-person learning by following the AAP and CDC guidance and requiring universal masking on school premises.

Please see here for the source and a summary of the available data, which are extensive, from the CDC:
cdc.gov/coronavirus/2019-ncov/science/science-briefs/masking-science-sars-cov2.html.

This Statement of Imminent Peril is promulgated using the information available to RIDOH on September 23, 2021, and is intended to supplement the already existing Statement of Imminent Peril issued when this Emergency Regulation was promulgated on September 23, 2021. The re-filing of this Emergency Regulation and Statement of Imminent Peril is not intended to be a new promulgation of an Emergency Regulation, but rather provide a more comprehensive Statement of Imminent Peril as directed by the Rhode Island Superior Court. See Southwell v. Rhode Island, PC-2021-5915 (Decision, November 12, 2021).

216-RICR-20-10-7

The Statement of Reasons for Finding of Imminent Peril

The novel coronavirus SARS-CoV-2, also known as COVID-19, has mutated into a more contagious variant, known as the Delta variant. As of July 4, 2021, Rhode Island had a “moderate transmission” rate of 11.2 cases per 100,000 people, but as of August 17, 2021, Rhode Island’s transmission rate has increased to “high transmission” of more than 187 cases per 100,000 people. New hospitalizations by week have more than quadrupled within that same time period. Health care workers and health care providers interact with some of Rhode Island’s most vulnerable populations: individuals who are immunocompromised and individuals with co-morbidities. These vulnerable populations are at risk for adverse health outcomes from COVID-19. As COVID-19 positive individuals are often asymptomatic or presymptomatic, health care workers and health care providers may unintentionally spread infection to these vulnerable patients. In order to protect these vulnerable populations, RIDOH is mandating that all health care workers and health care providers be vaccinated against COVID-19 by October 1, 2021.

216-RICR-20-15-8

The Statement of Reasons for Finding of Imminent Peril

COVID-19, the new disease caused by novel coronavirus SARS-CoV-2, has been deemed a global pandemic. It continues to spread and threatens to overwhelm the state's ability to respond. Since late summer 2021, Rhode Island has had a high transmission rate of COVID-19; as of December 20, 2021,Rhode Island has been averaging 727 cases per 100,000 persons in the past seven days. New weekly hospitalizations have nearly tripled between mid-November 2021 and mid-December 2021. Aggressive and sustained efforts are necessary to slow the spread of COVID-19 to lessen the strain on our health care system. Protective measures must be followed and implemented for individuals and establishments to continue operations so that the public is protected. By promoting compliance of COVID-19 Executive Orders through regulations that provide explanations and guidance, the public's health, safety and welfare can be assured.

216-RICR-10-05-6