Appeals Court should vacate Nassau judge's mask mandate ruling, NY attorney general says

The state Appellate Court should reverse or vacate a January ruling by a Nassau judge that found the state Department of Health overstepped by imposing indoor mask mandates for schools and other public locations, even as the requirements have been lifted by Gov. Kathy Hochul, according to Attorney General Letitia James' office.

The 100-page court filing, submitted on Wednesday, sets the stage for the next battle between the parents who filed the suit, contending that they should decide whether to mask their children in schools, and state regulators, who argue they have the authority to make public health decisions during the pandemic.

The legal proceedings began Jan. 24 when Nassau State Supreme Court Justice Thomas Rademaker ruled in the parents' favor, saying that only the State Legislature had authority to impose the mandate. He said the issue hinged on who had the authority, not the benefit of wearing masks.

The decision led to the mandate being lifted for one day in some school districts. The Appellate Court then issued a "stay" or temporary suspension of the ruling, ordering the masks back on.

On Sunday, Hochul announced that she was dropping the mandate, effective March 2, as COVID-19 levels have dropped sharply after hitting record-breaking highs in January amid the omicron variant surge. Her decision means that districts and individual schools do not have to require masks, though they can choose to do so.

James' court filing noted the existing ruling affects the Department of Heath's ability to reinstitute the masking requirement in schools or other indoor locations if needed.

"Indeed, the judgment could undermine appellants’ ability to quickly and effectively respond to the oft-changing pandemic using an important public health regulation that numerous other state and federal trial courts have found lawful," James' office wrote.

If the Appellate Court determines the case is now moot, the state asked it to vacate Rademaker's ruling, arguing it could be used to impede nonschool mandates that were still in effect, including on public transportation and in homeless shelters, as well as in health care settings.

Chad LaVeglia, the attorney representing the parents, did not return a call seeking comment Thursday but previously said they planned to push ahead with the case.

"It’s on them to convince the court that they have the authority" to impose such mandates, LaVeglia said on Tuesday.

It remains unclear when the Appeals Court will make a decision on the mandate.

Health commissioners: New pandemic chapter

Long Island has entered a new stage of the pandemic as the public returns to a sense of normalcy, the Nassau and Suffolk health commissioners said during a Newsday Live panel on Thursday.

Dr. Lawrence Eisenstein, Nassau's health commissioner, pointed to the low levels of cases and the end of mandates and looked to a time where COVID-19 would be viewed as "endemic" — similar to influenza — likely a permanent fixture but one where "most of the time, it does not impact us."

"There are protocols in place when flu becomes widespread and health care workers need to be vaccinated or wear a mask," Eisenstein said. "But most of the year flu is not widespread, so we don't implement those protocols. That's the kind of situation we are heading for with COVID."

Dr. Gregson Pigott, Suffolk's health commissioner, said with most of the public vaccinated — and oral therapeutics becoming more widely available — it's unlikely the virus will ever inflict the type of damage the region experienced in the spring of 2020, when COVID-19 patients overwhelmed hospitals.

"Everything is about risk at this point," Pigott said. "If you're doing everything you can to protect yourself from getting serious COVID, then you should be able to socialize and go back to pre-pandemic normal times."

Advocating for a 'proactive' approach going forward

Long Island medical leaders responded on Thursday to a new White House pandemic "preparedness plan" that charts the path ahead in managing and living with the virus.

The strategy includes an enhanced genomic surveillance program to catch the next variant before it spreads, accelerating research for a single vaccine that protects against all variants, and stockpiling at-home tests and high quality masks. It also includes providing schools with the tools to remain open during future surges, including those needed to improve air filtration.

"The preparedness plan tells you they're thinking ahead," said Dr. Sharon Nachman, chief of pediatric infectious diseases at Stony Brook Medicine. "We always like to be proactive and not reactive. And having a proactive plan means you've taken the time to play out in your head different scenarios."

One aspect of the plan that's created concern among some in the medical community is a "test to treat" program that would allow Americans to get tested for COVID-19 at pharmacies, health clinics and long-term care facilities. Those that test positive would immediately receive antiviral pills such as Paxlovid that have been shown to be effective against hospitalization.

But Dr. Bruce Farber, chief of public health and epidemiology for Northwell Health, called the one-stop distribution "overly simplistic." Paxlovid, he said, can have fatal complications when mixed with a host of existing medications a patient may be taking.

"It's not like Tamiflu," Farber said, referencing the influenza medication. "It has to be given to people with knowledge of what medication they're on … The concept that you're going to get a positive test at a CVS and then walk right down the hall and pick up a prescription for Paxlovid is overly simplistic and not realistic."

Long Island's seven-day positivity rate crept up slightly in results from Wednesday to 1.79%. There were 181 new daily cases in Nassau and 165 in Suffolk, according to state Health Department data. The state's seven-day average on Wednesday was 1.71%. There were 26 deaths statewide, including one in Suffolk.

Sign up to get text alerts about COVID-19 and other topics at newsday.com/text.

By Robert Brodsky

robert.brodsky@newsday.com@BrodskyRobert

Robert Brodsky is a breaking news reporter who has worked at Newsday since 2011. He is a Queens College and American University alum.