                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 7, 2016                     521067
________________________________

In the Matter of NEW YORK STATE
   CORRECTIONAL OFFICERS AND
   POLICE BENEVOLENT
   ASSOCIATION, INC., et al.,
                    Appellants,             MEMORANDUM AND ORDER
      v

NEW YORK STATE OFFICE OF MENTAL
   HEALTH et al.,
                    Respondents.
________________________________


Calendar Date:   February 11, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


      Sheehan Greene Golderman & Jacques, LLP, Albany (Lawrence
H. Schaefer of counsel), for appellants.

      Eric T. Schneiderman, Attorney General, Albany (Allyson B.
Levine of counsel), for respondents.

                             __________


Garry, J.P.

      Appeal from a judgment of the Supreme Court (Elliott III,
J.), entered July 30, 2014 in Albany County, which dismissed
petitioners' application, in a proceeding pursuant to CPLR
article 78, to review a certain regulation promulgated by
respondent Commissioner of Mental Health.

      Petitioner New York State Correctional Officers and Police
Benevolent Association, Inc. (hereinafter NYSCOPBA) represents
certain personnel at psychiatric centers operated by respondent
Office of Mental Health (hereinafter OMH). Petitioner Richard
                               -2-                521067

McPhillips is employed at Mid-Hudson Forensic Psychiatric Center.
In December 2013, OMH promulgated an emergency regulation that
required personnel in psychiatric centers operated by OMH and
psychiatric facilities licensed under Mental Hygiene Law article
31 who had not been vaccinated against influenza to wear face
masks in areas where patients might be present during influenza
season (see 14 NYCRR former 509.4 [c]). Petitioners thereafter
commenced this CPLR article 78 proceeding contending, as
pertinent here, that the emergency regulation was arbitrary and
capricious. Respondents answered and sought dismissal of the
petition. Supreme Court dismissed the petition and petitioners
appeal.

      Initially, we find that petitioners' claims were not
rendered moot by the expiration of the emergency regulation and
OMH's subsequent adoption of a permanent regulation that
incorporates the mandatory mask-wearing requirement into its
rules pertaining to the prevention of influenza transmission (see
14 NYCRR part 509).1 A proceeding is not moot when "the rights
of the parties will be directly affected by the determination of
the [proceeding] and the interest of the parties is an immediate
consequence of the judgment" (Matter of Hearst Corp. v Clyne, 50
NY2d 707, 714 [1980]; accord Matter of King v Jackson, 52 AD3d
974, 975 [2008]). Here, petitioners challenged the permanent
regulation by commencing a separate special proceeding in Supreme
Court, which has been marked off the court's calendar pending the
outcome of this appeal; petitioners assert – and respondents
agree – that a determination upon the merits in this appeal will
also decide the outcome of the challenge to the permanent
regulation.

      The adoption of a new law does not moot a challenge to the
validity of an older law, even when the older law has been
superseded, when both laws suffer from the same alleged
infirmities such that a challenge to the new law will be affected
by the resolution of the claims regarding the older law (see
Matter of City of Glens Falls v Town of Queensbury, 90 AD3d 1119,


     1
        The emergency regulation expired by its terms 90 days
after it was enacted.
                              -3-                521067

1120 [2011]; Matter of Westbury Trombo v Board of Trustees of
Vil. of Westbury, 307 AD2d 1043, 1045 [2003]). Here, as
originally enacted, the language of the permanent regulation,
codified at 14 NYCRR 509.4 (c), was identical to that of the
emergency rule. Thereafter, minor amendments somewhat narrowed
the scope of the regulation (see 14 NYCRR 509.4 [c] [1], [2],
[3]). However, as this Court recently determined in an analogous
case, these alterations neither "meaningfully change[d] the mask-
wearing requirement for non-vaccinated personnel" nor "adversely
affect[ed] or change[d] the basis of petitioners' challenge to
the regulatory requirement" (Matter of Spence v Shah, 136 AD3d
1242, 1244 [2016]; see 10 NYCRR 2.59 [d] [1], [2], [3]). Here,
as in that matter, personnel who are currently subject to the
permanent regulation will be affected if petitioners are
successful in challenging its predecessor. Thus, the matter is
not moot.

      Turning to the merits, petitioners contend that the
mandatory mask-wearing requirement is arbitrary and capricious
because it fails to take into account the special circumstances
present in psychiatric facilities.2 "[OMH] is entitled to a high
degree of judicial deference, especially when act[ing] in the
area of its particular expertise, and thus petitioners bear the
heavy burden of showing that [the regulation] is unreasonable and
unsupported by any evidence" (Matter of Nazareth Home of the
Franciscan Sisters v Novello, 7 NY3d 538, 544 [2006] [internal
quotation marks, ellipsis and citation omitted]; see Matter of
Consolation Nursing Home v Commissioner of N.Y. State Dept. of
Health, 85 NY2d 326, 331 [1995]; Matter of Brooklyn Hosp. Ctr. v
Shah, 101 AD3d 1546, 1547 [2012], lv denied 21 NY3d 851 [2013]).
Petitioners assert that the job responsibilities of the affected
personnel include such functions as assisting psychiatric
patients in their treatment and rehabilitation, maintaining their
safety and security and modeling appropriate behavior, and that
the mask-wearing requirement interferes with their ability to


    2
        Due to the promulgation of the permanent regulation,
petitioners are no longer seeking relief based upon OMH's alleged
failure to comply with statutory procedures in adopting the
emergency regulation.
                              -4-                521067

communicate with patients, act as effective role models and
otherwise perform their job responsibilities.

      In support of the rationality of the challenged regulation,
OMH submitted, among other things, the affidavit of Lloyd
Sederer, the Chief Medical Officer for OMH, who averred that, in
promulgating the emergency regulation, OMH was "following the
lead" of the Department of Health (hereinafter DOH), which had
recently promulgated a rule pertaining to the use of masks to
prevent influenza transmission in health care facilities.
Notably, this Court recently determined that the DOH regulation
was not arbitrary, capricious, irrational or contrary to law (see
Matter of Spence v Shah, 136 AD3d at 1246). Sederer averred that
OMH relied upon the knowledge and expertise of DOH clinicians in
deciding to adopt a similar regulation, including Emily
Lutterloh, a DOH physician with expertise in infectious disease
control and epidemiology. By an affidavit included within the
record, Lutterloh describes DOH's reasons for adopting the mask-
wearing requirement, including the significant annual mortality
and morbidity associated with influenza, the serious risk it
poses to persons in health care facilities, and the high risk of
influenza transmission from health care personnel to patients.
According to Lutterloh, workers who have been infected with
influenza may expose patients to the disease by working before
symptoms appear or while suffering from a mild form of the
illness, and wearing a mask is an effective alternative to
vaccination in reducing the risk of influenza transmission under
such circumstances. In addition to relying upon the expertise of
DOH, OMH also considered research and recommendations from
various authorities such as the Centers for Disease Control and
the Food and Drug Administration pertaining to the use of face
masks to control the spread of disease. OMH also drew from its
own particular expertise in treating the mentally ill in
concluding that individuals with chronic and serious mental
illness suffer higher rates of chronic physical illness than
other persons and that recent influenza seasons had been more
severe than in the past. Based upon the anticipated severity of
the influenza season and the high rates of preexisting physical
illnesses among OMH patients, OMH determined that the adoption of
an emergency regulation to control influenza transmission was
imperative to safeguard the health, safety and welfare of
                              -5-                521067

patients.

      Sederer addressed petitioners' specific concern that the
use of masks hampers the ability to communicate with psychiatric
patients, opining that masks do not significantly impede verbal
or nonverbal communication, as any slight muffling of the voice
can be overcome by minimal voice modulation, and the wearer's
eyes, eyebrows, hands and body posture remain visible. Contrary
to petitioners' contention, masks do not create blind spots in
the wearer's vision, cover his or her eyes or block peripheral
vision; Sederer noted that masks were worn at all times by
clinicians in operating rooms, who required use of their full
range of vision. As for petitioners' contention that masks
detract from a worker's ability to be an effective role model for
patients, Sederer opined that, on the contrary, wearing masks
sets a good example by showing concern for the patients' health
and welfare. Finally, Sederer disagreed with the contention that
a metal nose band in the masks – which he described as "small,
soft, flexible and flimsy" – could be fashioned into a weapon
capable of inflicting serious harm.

      Petitioners contend that the OMH regulation is arbitrarily
enforced in that contractors, attorneys and visitors who enter
psychiatric facilities are not required to use masks. Contrary
to petitioners' claim, contractors are not exempt from the mask-
wearing requirement; instead, the express terms of the regulation
include "contract staff" in the definition of personnel who are
subject to the mask-wearing requirement, along with employees,
medical staff, volunteers and others, so long as they "engage in
activities such that if they were infected with influenza, they
could potentially expose patients to the disease" (14 NYCRR 509.3
[e]). As for visitors and attorneys, OMH took into account the
fact that patients have statutory rights to receive visitors and
have contact with their attorneys (see Mental Hygiene Law
§§ 33.02 [9], [13]; 33.05; 14 NYCRR part 527), and further noted
that visitors and attorneys typically spend a limited amount of
time in psychiatric facilities and see only one patient at a
time, thus diminishing the risk that they will transmit
influenza. OMH concluded that the potential harm resulting from
infringing upon patients' rights to interact with visitors and
attorneys outweighed the risk of influenza transmission, and made
                              -6-                  521067

a reasoned, rather than arbitrary or capricious, decision to
exclude visitors and attorneys from the mask-wearing requirement.

      Taken as a whole, the record demonstrates that OMH did not
disregard the special circumstances present in psychiatric
facilities, but instead weighed these circumstances carefully and
reached the reasonable conclusion that any disadvantages
associated with mask-wearing in psychiatric facilities were
outweighed by the substantial advantages they offered in
preventing or reducing the transmission of influenza.
Accordingly, petitioners did not meet their burden to demonstrate
that OMH acted arbitrarily, capriciously or unreasonably in
promulgating the challenged regulation (see Matter of Spence v
Shah, 136 AD3d at 1246).

     Egan Jr., Lynch, Devine and Clark, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
