The Service's Positions, Answered
The Service's letters and examination reports rest on fourteen grounds. Each is answered below from the statute's text, from Tri-State, from the instruments with their exhibit identifiers, and from the United States' own representations. None survives the public record for dental and orthodontic practices.
1. No orders in effect
"There were no government orders related to COVID-19 in effect during the quarter which could have fully or partially suspended your trade or business."
For every quarter, the six-quarters section above lists the orders in force on the quarter's first and last day, by issuer, date and terms, with exhibit identifiers, and the tables on this page tabulate them. For the second quarter of 2020 the list is the emergency-only order of every State that issued one, naming "dental, orthodontic and endodontic offices" (Washington, Florida, New Mexico), "[d]ental service providers" (Tennessee), "dental facilities" (Michigan, New Jersey), "dental clinics" (Oregon), "non-emergency dental procedures" (Oklahoma) or "all dental procedures" (Vermont), and the stay-at-home order of every other.298 For the third quarter of 2021 alone the list runs to the Standard binding "all settings where any employee provides healthcare services," the National Emphasis Program naming NAICS 621210, the conveyance order, the respirator authorizations, the vaccination orders of Washington, Maine, Rhode Island and Illinois and of Philadelphia, Los Angeles County, Pasadena and Denver that named dental facilities, offices, practices or practitioners in terms, Puerto Rico's order on the health sector, the health-care masking rules (airborne-transmission controls on every person in the operatory) of thirteen States, the District of Columbia and Chicago and the workplace standards of five States.299 A form sentence that no orders were in effect is not the "case-by-case" determination the United States described to the District Court.300 It is factually incorrect. The sentence describes a quarter that did not occur, and the Service's records, whatever they contain, do not contain the Federal Register of June 21, 2021.
2. Essential business, remained open
"The employer operated an essential business and remained open."
The word "essential" is not in the statute. The essential-services designations that named dentistry permitted emergency care; they exempted no operatory from the orders that forbade every other procedure, and they exempted no reopened practice from the screening, respirator, fallow-time, capacity and written-plan conditions that applied to every dental office in the State.301 The Notice's own Example 4 is a health-care employer designated essential whose "elective and non-urgent medical procedures" an order treats as "non-essential business operations," and the Notice says that employer "is considered to have a partial suspension of operations due to the governmental order"; the United States told the District Court that an employer "could be considered to have a partial suspension due to the governmental order if it was required to suspend certain operations for certain purposes."302 Tennessee's order made the point in one sentence: the dental provider was essential for "treatment for pain, swelling, trauma, or an abscess" and forbidden everything else.303 The designation was a permission to operate under the orders, not an exemption from them. A practice that "remained open" for emergencies under an order that closed it to hygiene, cosmetic and elective procedures was partially suspended by that order, which is what the Notice's own example says.
3. Orders directed to the public
"Stay-at-home orders directed to the public are not considered; only orders directed at business operations count."
The statute says nothing of the source or addressee of the order; it asks whether the order limited "commerce, travel, or group meetings." The Notice's own list of qualifying orders includes "A State's emergency proclamation that residents must shelter in place" and "An order from a local official imposing a curfew on residents," both addressed to the public, and the United States quoted that list to the District Court as the statute's meaning and told the Ninth Circuit that a business "may be suspended 'due to' a government order addressing a third party."304 The orders that reached this industry were, moreover, directed at its operations in terms: "I hereby prohibit all ... dental, orthodontic and endodontic offices in Washington State from providing health care services"; "[d]ental service providers ... shall not perform any non-emergency dental or oral procedures"; "each dental office shall create COVID-19 procedures"; "[a]ll elective medical, surgical, and dental procedures are prohibited anywhere in Dallas County."305 And the stay-at-home orders named the industry too: Alabama's order permitted a resident to leave home for emergency dental care and thereby forbade every other dental visit.306 The position rewrites the statute and misdescribes the orders.
4. Comparable operations through telework
"The employer could have continued comparable operations through telework."
"Comparable operations" and "telework" are not in the statute; Tri-State defines a partial suspension as a temporary delay, interruption or termination of a portion of the business, and no portion of dentistry that touches a patient can be performed by telephone.307 The Notice's own words confirm it. Q&A-15 provides that where "the closure of the workplace causes the employer to suspend business operations for certain purposes, but not others, it may be considered to have a partial suspension of operations due to the governmental order," and its Example 2 is a physical-therapy facility that moves to an online format and serves some of its patrons remotely, which the Notice treats as partially suspended because its "workplace, including access to physical therapy equipment, is central to its operations"; Q&A-16 provides that where the physical work space is so critical that central tasks cannot be performed remotely "this factor alone indicates that the employer is not able to continue comparable operations."308 The operatory is the physical-therapy gym of Example 2. Teledentistry triage, which the orders themselves directed in place of the visit, is not a comparable operation; it is the portion of the operation the orders left.309 The comparable-operations sentence with which Q&A-15 opens is not in the statute, has no force of law by the United States' own account, and is not applied here. The four comparable-operations factors first appeared on March 1, 2021; the FAQs against which the 2020 quarters' orders operated contained none of them.310 The position substitutes a word Congress did not write for the one it did, and applies it to an industry whose every billable act requires the patient in the chair.
5. Customers, not the employer (Q&A-13)
"The orders affected the employer's customers, not the employer (Q&A-13)."
Q&A-13 addresses an employer that suspends operations because of "a reduction in demand." This analysis pleads no reduction in demand. It pleads orders that closed the operatory to every non-emergency patient, orders that conditioned every reopened visit, orders that confined the patient to the home, orders on the laboratories, hospitals and distributors on which the practice depends and orders on the practice's own workforce, and it pleads those orders as orders limiting commerce, travel and group meetings under the statute's text, Q&A-12's logic and the United States' admission that a third-party order counts.311 A stay-at-home order on the patient base is itself an order limiting commerce, and the commerce it limited was this industry's. Q&A-13 describes an employer that "responds to the lack of demand by suspending some or all of its operations." Dentistry did not respond to a lack of demand; its recall lists were full on the day the orders closed it, and the orders, not the patients, emptied the schedule. Where Q&A-13 would exclude an order confining the customer base it adds to the statute words the United States has represented have no force of law; the exclusion the Service now applies to every employer and to any "reduction in demand" was, on April 29, 2020, confined to an employer the order allowed to remain open and "not required to close its physical locations," and was broadened only on March 1, 2021; and the Service's invocation of it against this industry misdescribes both the orders and the industry.312
6. Voluntary measures (Q&A-14)
"The employer's measures were voluntary (Q&A-14)."
A hygiene appointment cancelled because Michigan's Executive Order 2020-17 made keeping it a misdemeanor, a respirator worn because 22 Tex. Admin. Code § 108.7 required it, a patient screened at the door because the Standard required it and a new hire's vaccination record inspected because Proclamation 21-14 required it are not voluntary. Q&A-14 describes an employer that closes without any order; every modification stated here is traced to an order with an exhibit identifier.313 Where a multi-State dental support organization adopted a nationwide protocol to comply with the orders of the jurisdictions that bound it, Q&A-20 makes it eligible "with respect to all of its operations in all locations."314 The ADA's and CDC's guidance documents are cited on this page only as the standards the orders incorporated by reference, and the binding instrument cited is always the order.315 A modification traced to an order with an exhibit identifier is not voluntary, and the position that it was describes an employer this analysis does not address.
Q&A-14 reaches, by its own terms, only a suspension "not due to a governmental order," and the United States and the District Court have defined the excluded employer as one "not being ordered to do so."316 No dental practice in Texas, or in any other State whose standing duties are stated above, answered that description in any of the six quarters. The reopening orders permitted practice only on conditions with the force of law: GA-19 made every licensee "limited in their practice by, and must comply with," the Board's emergency rule, and Government Code § 418.173 attached the penalty. The standing statutes commanded the same conduct independently: the Communicable Disease Prevention and Control Act, whose § 81.002 provides that "Each person shall act responsibly to prevent and control communicable disease" and whose §§ 81.082 to 81.087 impose control measures on persons and premises under criminal penalty; Labor Code § 411.103's command that "Each employer shall" provide "a place of employment that is reasonably safe and healthful for employees"; and the general duty clause, 29 U.S.C. § 654(a)(1), enforced by citation from September 2020, with the Act's standards enforced against an office of dentists in April 2021. The Legislature then fixed the standard of care as compliance with "government-promulgated standards, guidance, or protocols," for every action commenced on or after March 13, 2020. The safe-workplace statute had no COVID-19 content until the health authorities said what a safe operatory required; the screening, the respirator and the fallow interval were taken because those directives defined the duty and would not have been taken without them. "Due to" is but-for causation, and the causation here runs from the command to the measure without an intervening choice. The Notice's own words confirm it: a modification "required by a governmental order as a condition of reopening" is a partial suspension due to the order. The standing-duties subsection above carries the same showing for the other principal States.317 A statute that commands conduct is an order from an appropriate governmental authority, and the Service's premise, that no command reached the employer, fails wherever a command did; in this record that is everywhere.
7. Not more than nominal (the ten percent figure as a floor)
"The portion of the business affected was not more than nominal (the 10 percent figure applied as a floor)."
The ten percent figure is, in the United States' words, "not determinative," "[e]ffectively ... a safe harbor," "not an eligibility requirement," "a quintessential safe harbor," "a safe harbor rather than a hard floor"; the District Court held it "is not an exclusionary cut-off point"; and Tri-State held that the Notice "provides a method for the test to be met not as a requirement to meet the test" and that reading it as a requirement "would read requirements into the statute that do not exist."318 The showing for this industry exceeds the safe harbor many times over: the emergency-only orders terminated hygiene, elective and cosmetic care, which together are the majority of every general practice's visits and revenue, for four to ten weeks of the second quarter of 2020, and industry employment fell by more than half in April 2020.319 The position applies as a floor a figure the United States has told two federal courts is not one. The chronology forecloses the floor for the 2020 quarters a second time. As the Service's FAQs stood on April 29, 2020, while the emergency-only orders of the second quarter were in force, they contained no "nominal" test and no percentage; the words "more than a nominal" first appeared on June 19, 2020, after the reopening conditions of April and May 2020 had taken effect; and the two ten percent deeming rules first appeared on March 1, 2021, in the Notice.320 A percentage the Service had not written when the orders closed the operatory cannot be the measure of the suspension those orders caused. The Service's FAQ page states that it "considers 'more than nominal' to be at least 10% of your business," and AM 2023-007 requires substantiation of a reduction "of not less than 10 percent"; the United States told the District of Arizona and the Eastern District of Washington that the same figure is a safe harbor, and it is held to that account.321
8. Modifications of nominal effect (Q&A-18)
"The required modifications (masks, gloves, spacing, screening) had only a nominal effect (Q&A-18)."
The modifications stated here are the termination of every non-emergency procedure, the respirator, fallow-time, screening, waiting-room and written-plan conditions of reopening, the exclusion of exposed staff with pay, the withdrawal of respirator inventory from lawful use and the vaccination-or-exclusion conditions on hiring, and the masking rules of 2021 are stated as what they are: occupational-health and airborne-transmission controls, orders from appropriate governmental authorities enforced by fine and license that conditioned every person in every operatory in the States and metros that issued them. Q&A-18 itself provides that "[a] governmental order that results in a reduction in an employer's ability to provide goods or services in the normal course of the employer's business of not less than 10 percent will be deemed to have more than a nominal effect," and the United States told the District Court that "employees having to wear face masks may impact business operations."322 Tri-State held that "the required protocols and procedures to comply with the Proclamation" were suspensions the order caused and refused the argument that they were nominal.323 The sentence that mask requirements "will not result in more than a nominal effect" first appeared on March 1, 2021, eleven months after the reopening orders made respirators, screening and fallow time conditions of every dental visit; it is a Notice gloss without force of law, and it does not describe the instruments stated here.324 Dentistry is the aerosol-generating profession; a rule that requires a fitted N95, a face shield and a cleared operatory for "any and all procedures likely to involve aerosols" is a rule about every procedure the profession performs. A chair that must sit fallow after every ultrasonic scaling is not a chair with a nominal modification; it is a chair that sees fewer patients by order.
9. A declaration of emergency is not an order (Q&A-10)
"A declaration of emergency is not an order (Q&A-10)."
This analysis relies on no bare declaration as a suspending order. Each instrument in the layers and quarters sections limited commerce, travel or group meetings in terms. Where an emergency declaration is cited, it is cited as the instrument under which those orders were issued and continued, as with Iowa's proclamations, each of which carried paragraph A's dental conditions in its text, or as proof of a period, which the Notice's own text allows.325 The ground answers an argument this analysis does not make.
10. Supplier not closed; supply-chain effects too attenuated (AM 2023-005)
"The supplier was not itself closed by order; supply-chain effects are too attenuated (AM 2023-005)."
Chief Counsel memoranda "may not be used or cited as precedent," by their own legend, which Tri-State quoted in declining to rely on the Chief Counsel memorandum the United States offered there.326 The suppliers of this industry are the dental laboratories the elective-procedure orders closed, the respirator market FEMA allocated by rule, the respirator inventory the FDA withdrew from lawful use by letter, the hospitals the elective-procedure orders closed to the oral surgeon and the boards whose offices closed to the hygienist's license, and each was closed or conditioned by an order with a date and an exhibit identifier; nothing here is attenuated. The United States told the Ninth Circuit that the supplier rule "never even mentions a 'physical[ ] clos[ure]' order against the supplier," and told the District Court that an employer is eligible where its operations are suspended "because of the supplier's inability to deliver."327 Causation is but-for on the United States' own agreed definition: absent the FEMA rule, no law allocated the practice's respirators; absent the hospital order, no law closed the oral surgeon's operating room.328 The position describes an attenuated chain this analysis does not plead; a respirator allocation rule in the Federal Register is not a supply-chain effect, and a Chief Counsel memorandum that cannot be cited as precedent is not the statute.
11. The orders had lifted; any effect was a lingering effect
"The orders had lifted before the quarter began; any effect was a lingering effect."
For the third quarter of 2021 the orders had not lifted: subpart (B) of the third-quarter section lists, with dates, nineteen classes of instrument in force between July 1 and September 30, 2021, four of them federal and in force on both the first and the last day of the quarter, beginning with a federal standard that took effect ten days before the quarter began and continuing with a vaccination order that named "Dental and dental specialty facilities" five weeks after it began; subpart (D) states the step dates on which the statewide dental conditions lapsed and the four pathways by which the suspension continued; and the paragraph that closes that section names the expired instruments on which the proof does not rest.329 Where the position means that a suspension compelled by an order that expired on June 18, June 26 or June 30 ended at midnight, it misreads the clause, which asks whether the operation "is fully or partially suspended during the calendar quarter," and it contradicts Tri-State's definition of a suspension as a "delay," Q&A-22's whole-quarter rule and Q&A-16's transition rule.330 The position mistakes the date an order lapsed for the date the suspension it compelled ended; the clause asks about the second.
12. No decline in gross receipts
"The employer did not experience the required decline in gross receipts."
The gross-receipts prong is not relied on. The statute makes an employer eligible on either prong, and the United States admitted in Tri-State that the gross-receipts test is "another method to qualify," on which the court held "the fact an employer can be eligible and affected without partial or full suspension is reasonable."331 The suspension prong asks about operations, not revenue, and it is satisfied in every quarter. The ground answers a prong this analysis does not invoke; Congress joined the two prongs with "or."
13. Guidance, recommendations or best practices, not orders
"The instruments relied on are guidance, recommendations or best practices, not orders."
Every instrument this analysis relies on as a suspending order is an order, proclamation, rule, directive, statute or administrative order with the force of law, issued under a recited statutory or constitutional power and enforced by penalty, license or contract: a gross misdemeanor under RCW 43.06.220(5); a misdemeanor under Michigan's Executive Order 2020-17; a $5,000 civil penalty under New Mexico's order; peace-officer enforcement under Iowa's proclamation; license discipline under Texas's rule; the OSH Act's penalties under the Standard.332 Where a State made a guidance document binding by incorporating it into an order, as Oregon did by giving the Health Authority's guidance "the full force and effect of law," as Iowa did by prohibiting every procedure "except in compliance with" the Board's Guidelines and as Texas did by making every licensee "limited in their practice by" the Board's emergency rules, the binding instrument is the order, and it is the order that is cited.333 The ADA's, CDC's and OSHA's guidance documents are cited as guidance and as the standards the orders incorporated, never as orders.334 The Notice itself provides that whether an instrument is a governmental order "is determined without regard to the level of enforcement."335 An instrument enforced by misdemeanor, civil penalty, peace officer, license or federal citation is not a recommendation, and the position that it is misdescribes every instrument this analysis names.
14. "Order" must be given its ordinary meaning
"'Order' must be given its ordinary meaning."
Agreed. An "order" is "a specific rule, regulation, or authoritative direction : command" and "a ruling or command made by a competent administrative authority"; the United States agreed in Tri-State that the clause is read by "plain meaning."336 Every instrument in the third-quarter finding is a command from a competent authority to do or refrain from doing something on pain of sanction: "I hereby prohibit"; "shall not perform"; "must be postponed indefinitely"; "shall create"; "are prohibited from providing"; "applies to all settings."337 That is the ordinary meaning, and it is satisfied.
The Service is free to disagree about the weight of these instruments. It is not free to say they did not exist.