Function by Function
The Suspension Clause asks whether "the operation of the trade or business" was "fully or partially suspended." The operation of a dental or orthodontic practice is eleven functions, defined above. This section states, for each, the quarters in which it was partially suspended and the instruments because of which it was, in the form the statute requires: the operation of the function was partially suspended in the quarters named because of the orders named. The Eastern District of Washington's definition governs: a partial suspension "is a temporary delay, interruption, or termination of a portion an employer's business," and the statute does not require the portion to be "significant."229 Every instrument cited is stated with its operative clause in the layers and quarters sections and tabulated on this page.
CH. Chairside care and hygiene
The operation of chairside care and hygiene was partially suspended in the second quarter of 2020 because of the emergency-only orders of at least thirty States and the District of Columbia and the stay-at-home orders of the rest; in the third and fourth quarters of 2020 and the first and second quarters of 2021 because of the reopening conditions, board rules and workplace standards that governed every visit; and in the third quarter of 2021 because of the Standard, the health-care masking rules of the States and the indoor-masking orders of the metros, airborne-transmission controls on every hygiene chair.230
The mechanism
The hygiene visit is the industry's most frequent encounter and its most aerosol-intensive routine procedure. The spring orders named it: Tennessee's "hygiene visits," Michigan's "any routine hygiene appointments," Iowa's "all routine hygiene ... recall visits for periodontally-healthy patients," Minnesota's "non-emergent or elective dental care."231 For four to ten weeks the function was not partially suspended; it was terminated, which is the fullest form of the statutory word. From the reopening date forward every hygiene visit was performed under conditions that were themselves orders: Texas's rule 108.7 required "Transmission-Based Precautions, including N-95 respirator" use for "any and all procedures likely to involve aerosols"; Iowa's paragraph A required compliance with the Board's Guidelines on pain of prohibition; Alaska's Appendix 03 required screening of every patient and testing before non-emergent aerosolizing procedures; Maryland's Directive required face coverings on every provider as one of its infection-prevention and exposure-control conditions; New York's mandatory Interim Guidance fixed fallow time and distancing; Arizona's exemption required "universal symptom screening"; Detroit's order required masks and waiting-room limits, exposure controls on every outpatient facility.232 A hygienist who must wear an N95 and a face shield, clear the operatory between patients and see fewer patients per day than her schedule carried in February 2020 is performing a portion of her function; the orders interrupted the rest. In the third quarter of 2021 the Standard's paragraphs (d), (e), (f), (h) and (i) and the health-care masking rules, airborne-transmission controls, of New Jersey, Massachusetts, Connecticut, Kentucky, Hawaii, California, Nevada, the District of Columbia, Louisiana, Oregon, New Mexico, Washington, New York and Illinois governed every hygiene chair in those jurisdictions from their dates.233
PR. Elective and aerosol-generating procedures
The operation of elective and aerosol-generating procedures was partially suspended in the second quarter of 2020 because of the elective-procedure orders of every State that issued one; in the third and fourth quarters of 2020 and the first and second quarters of 2021 because of the aerosol-control, respirator and fallow-time conditions of the reopening instruments and the winter procedure orders of Pennsylvania, Massachusetts, New Mexico, Nebraska, Indiana and Washington; and in the third quarter of 2021 because of the Standard's paragraph (g), its paragraph (d) screening-and-exclusion mandate and the respirator authorizations.234
The mechanism
Crown preparations, restorations, extractions, implant placements, orthodontic bonding and debonding and every ultrasonic scaling generate aerosol. The orders addressed them by name and by class: New Jersey's "'elective' invasive procedures ... whether medical or dental," Washington's services that "if delayed, are not anticipated to cause harm to the patient within the next three months," Florida's "medically unnecessary, non-urgent or non-emergency procedure or surgery," Oklahoma's "non-emergency dental procedures," Vermont's "all dental procedures," Colorado's "all voluntary or elective surgeries and procedures."235 The reopening orders then governed how each procedure could be done: Texas's respirator rule, Iowa's Guidelines, Alaska's pre-procedure testing, Kentucky's "enhanced aerosol protections for dental offices," Mississippi's conservation conditions, Oregon's Health Authority rules with "the full force and effect of law."236 The FEMA allocation rule and the FDA authorizations determined which respirators a practice could lawfully obtain and use for those procedures through June 30, 2021, and the FDA's revocations of June 30 and July 6, 2021 and reissuance of July 12, 2021 removed decontaminated, expired and imported non-NIOSH respirators from lawful use in the third quarter of 2021.237 In that quarter the Standard's paragraph (g) governed every aerosol-generating procedure on a suspected or confirmed case and its paragraph (d) required every patient to be screened and every suspected case turned away, which in a practice that performs aerosol-generating procedures on every patient is a condition on every procedure.238
EM. Emergency-only periods
The operation of the practice was reduced to emergency care, its emergency-only period, in the second quarter of 2020 in every State because of the instruments inventoried by layer above and in the fifty-State table, and the emergency-only period is itself the clearest statutory instance of partial suspension: an operation permitted to continue as to one portion, "treatment for pain, swelling, trauma, or an abscess," and ordered suspended as to every other.239
The mechanism
The emergency exceptions defined the period. Washington excepted "dental care related to the relief of pain and management of infection"; Tennessee excepted "[e]mergency procedures for patients with acute dental or oral needs ... including treatment for pain, swelling, trauma, or an abscess"; Oklahoma's Board defined emergency and urgent treatment by resolution; North Carolina's Board published COVID-19 Definitions of Emergency Treatment; the Pascua Yaqui Tribe's Health Department announced that its dental program would see "emergencies only" under the tribal government's measures of March 2020.240 The Notice's own Example 4 describes the period: a health-care employer whose "elective and non-urgent medical procedures" an order treats as "non-essential business operations and prevents Employer H from performing," which the Notice says "is considered to have a partial suspension of operations due to the governmental order."241 The emergency-only period ran from March 16 to 31, 2020 into the second quarter of 2020 in every State and ended, State by State, between April 22 and June 8, 2020; the Department of Defense's dental facilities ran the same period from March 31 to May 21, 2020.242 The wages paid during the period are qualified wages under CARES § 2301(c)(3)(A)(i) for employers with more than 100 full-time employees and under § 2301(c)(3)(A)(ii) for every other employer.243
ST. Sterilization, fallow time and infection control
The operation of sterilization, fallow time and infection control was partially suspended, in the statutory sense of an interruption of a portion of the operation, in every quarter from the second quarter of 2020 through the third quarter of 2021 because of the reopening conditions, the State workplace standards and the Standard's paragraphs (e), (j) and (k), each of which imposed a between-patient interval, a cleaning protocol and a ventilation duty that the operatory did not carry before March 2020.244
The mechanism
An operatory that must sit fallow for a fixed interval after an aerosol-generating procedure, be wiped and disinfected on a fixed protocol and be ventilated to a fixed standard produces fewer patient encounters per chair per day; the order interrupts the portion of the chair's operation that the interval consumes. Texas's rule required "COVID-19 procedures" and training in every office; Iowa's Guidelines, New York's Interim Guidance, Minnesota's written plan, Alaska's Appendix, Maryland's Directive and Kentucky's Phase I order fixed the protocols; Cal/OSHA's, Virginia's, Washington's and MIOSHA's standards fixed cleaning and ventilation duties as workplace law; the Standard fixed them federally from June 21, 2021.245 The Service's Notice recognizes the class: Q&A-18's list of modifications "required by a governmental order as a condition of reopening" is a list of infection-control conditions.246
FD. Scheduling, recall and front desk
The operation of scheduling, recall and the front desk was partially suspended in the second quarter of 2020 because the emergency-only orders terminated the recall schedule; in the third and fourth quarters of 2020 and the first and second quarters of 2021 because of the telephone-screening, staggered-appointment, waiting-room and attestation conditions of the reopening instruments; and in the third quarter of 2021 because of the Standard's paragraph (d), the vaccination orders' verification duties and the masking rules' enforcement duties.247
The mechanism
Texas's rule required every office to "develop and utilize an office protocol to screen all patients by phone" and to "perform in office screening protocol which must include a temperature check"; Arizona's exemption required "universal symptom screening ... prior to entry"; Alaska's Appendix required pre-appointment and in-office screening; Mississippi's order limited waiting-room capacity; Detroit's order limited waiting rooms and appointments and required telehealth "to the greatest extent possible"; Maryland's Directive required screening of every worker and patient.248 The front desk is the function on which the screening, the intake attestation, the mask enforcement, the vaccination-card verification and the appointment-spacing duties all fell, and a front desk that must do those things has had a portion of its scheduling and intake operation interrupted. In the third quarter of 2021 the Standard's paragraph (d) made screening every non-employee a federal duty for every practice within the Standard and the condition of the exception for every practice outside it.249
SC. PPE and consumables
The operation of the practice's supply function was partially suspended from the second quarter of 2020 through the second quarter of 2021 because of FEMA's allocation rule, which designated respirators, surgical masks and surgical gloves as scarce materials, barred their export and subjected them to allocation orders, and because of the States' conditions that a practice hold a fixed supply obtained "without relying on state or local PPE stockpiles"; and in the third quarter of 2021 because of the FDA's revocations and reissuance and the Standard's paragraph (f).250
The mechanism
Every reopening order conditioned practice on protective equipment the practice was ordered to obtain from a market the federal government was allocating: Iowa's "adequate inventories of personal protective equipment (PPE) and access to a reliable supply chain without relying on state or local PPE stockpiles"; Maryland's one-week supply; Delaware's two-week supply; Florida's Executive Order 20-112 capacity conditions; Arizona's rule that the exempted practice "is not eligible to request or receive PPE distributed by the state or county health departments"; Mississippi's certification that the practice "will not request any personal protective equipment from any public source."251 The Service's Q&A-12 treats an order on a supplier that prevents the employer from obtaining "critical goods or materials" as a partial suspension of the employer; here the order on the supply was federal and the condition on the purchaser was State law.252
LB. Dental laboratories and suppliers
The operation of the laboratory pipeline was partially suspended in the second quarter of 2020 because the elective-procedure orders closed the laboratories' customers and the manufacturing and workplace orders of their own States closed or capped the laboratories; in the third and fourth quarters of 2020 and the first and second quarters of 2021 because of the workplace standards and face-covering orders, infection-prevention and exposure-control requirements on the laboratory floor, of the laboratories' States; and in the third quarter of 2021 because of the Standard, the State standards and the metro indoor-masking orders on the laboratories' premises.
The mechanism
A crown, denture, bridge or aligner is fabricated by a laboratory, in the practice's State or another or abroad, and seated at a second visit; the practice's restorative revenue is realized at the seating. When Minnesota postponed "indefinitely" every elective dental procedure "that utilize[s] PPE," the Minnesota laboratories' order books emptied; when Oregon cancelled procedures "across all settings that utilize PPE," the Oregon laboratories' did.253 The laboratories' own States' stay-at-home and workplace orders governed their premises, and the offshore laboratories' national lockdowns are facts and circumstances stated by category; the federal export bar on respirators and other scarce equipment governed the distributors' cross-border supply.254 The Service's Q&A-12 addresses this function directly: an employer whose supplier is unable to make deliveries "due to a governmental order" is partially suspended if the goods are critical to its operation; a prosthesis is critical to a restorative visit.255
HR. Hiring and credentialing
The operation of hiring and credentialing was partially suspended in the second quarter of 2020 because the licensing boards' offices closed and the examinations were postponed; in the third and fourth quarters of 2020 and the first and second quarters of 2021 because of the training, attestation and licensure-waiver conditions; and in the third quarter of 2021 because Washington, Maine, Rhode Island, Illinois, Philadelphia, Los Angeles County, Pasadena, Denver and Puerto Rico conditioned employment in a dental office on vaccination or testing and required every practice to verify, document and exclude.256
The mechanism
Missouri's Division of Professional Registration closed to walk-in visitors from March 23, 2020; Florida's Department of Health emergency orders governed licensure, renewal and examination from March 16, 2020 to June 26, 2021; California's Department of Consumer Affairs waived and re-waived license requirements from March 31, 2020 to September 28, 2021; Pennsylvania's dental and dental-hygienist waivers ran to September 30, 2021.257 Texas's rule required every office to "provide dental health care personnel (DHCP) training"; the Standard's paragraph (n) required training federally.258 In the third quarter of 2021 Washington's Proclamation 21-14 prohibited every operator of a "Dental and dental specialty facilit[y]" from permitting an unvaccinated provider to work after October 18, 2021 and required verification within the quarter; Maine's rule "requires employees of ... Dental Health Practices ... to become immunized"; Illinois's order required every "dental office[]" to require vaccination or weekly testing of every worker; Rhode Island's rule named the "dentist"; Los Angeles County's order named "dental" practices at paragraph a(x) and the "dental office" among its covered facilities; Philadelphia's regulation named "dental" services; Denver's order named clinical settings; Puerto Rico's bulletin reached the health sector.259 A practice that must, by order, ask every applicant and every employee for a vaccination record and exclude those who do not produce one has had a portion of its hiring operation interrupted.
OF. Billing and administration
The operation of billing and administration was partially suspended from the second quarter of 2020 through the third quarter of 2021 because of the written-plan, training, attestation, reporting, recordkeeping, paid-leave and medical-removal-benefit duties the orders placed on the practice's administrative staff.260
The mechanism
Minnesota's Executive Order 20-51 required a written plan and an internal oversight structure; Texas's rule required written "COVID-19 procedures"; Colorado's Public Health Order 20-29 required written protocols; Iowa's Guidelines required a conservation plan; Los Angeles County's and San Francisco's orders required a posted Social Distancing Protocol; Virginia's, Cal/OSHA's, MIOSHA's and Washington's standards required written prevention programs, exposure notification and recordkeeping; Pennsylvania required antigen-test reporting from October 15, 2020; Indiana's control measures required case reporting; the FFCRA required paid leave and its documentation from April 1 to December 31, 2020, and New York's, New Jersey's, Colorado's and Massachusetts's laws required it through September 30, 2021.261 The Standard's paragraphs (c), (l)(5), (n), (q) and (r) required a plan, medical removal protection benefits, training, a COVID-19 log and reporting from June 21, 2021.262 The Service's Q&A-18 treats a modification "required by a governmental order as a condition of reopening" as a partial suspension where it affects the operation more than nominally; a practice that must write, post, train on, log under and report under an order has had a portion of its administrative operation reassigned by the order.263
WF. Workforce availability
The operation of the practice's workforce function was partially suspended in every quarter from the second quarter of 2020 through the third quarter of 2021 because of the quarantine and isolation orders that confined exposed and infected staff, the school-closure and remote-instruction orders that removed the parents among them, the FFCRA and State paid-leave mandates that compelled the practice to pay them not to work, the workplace standards that excluded them, the conveyance order that governed their commute and the vaccination orders that conditioned their employment.264
The mechanism
The industry's workforce is overwhelmingly women; the school-closure orders of March 2020, the remote-instruction and quarantine orders of the 2020-21 school year and the school-masking and quarantine orders of August and September 2021, infection-prevention controls on the classroom, governed the household of every hygienist, assistant and receptionist with a school-age child, and the FFCRA made the practice pay for the absence.265 The FFCRA compelled paid leave from April 1 to December 31, 2020 for every employee subject to a quarantine order or caring for a child whose school an order had closed; the State laws of New York, New Jersey, Colorado and Massachusetts compelled it through the third quarter of 2021.266 Cal/OSHA's standards excluded exposed employees with pay from November 30, 2020; MIOSHA's rules did the same from October 14, 2020 to June 22, 2021; the Standard's paragraph (l) did so federally from June 21, 2021 and paid the excluded employee up to $1,400 per week.267 Iowa's proclamation of November 10, 2020 required remote work where possible; San Diego County's order required every business to "make every effort to use telecommuting."268 The conveyance order imposed an airborne-transmission control on every transit commute from February 1, 2021.269 The Eastern District of Washington's observation that "[s]ick patients and employees alone did not require additional protocols" states the point: it was the orders, not the illness, that removed the employee from the operatory and compelled the practice to pay her while she was gone.270
CB. Patients and payers
The operation of the practice's patient-facing function was partially suspended in the second quarter of 2020 because the stay-at-home orders of every State and metro confined the patient base to the home and the emergency-only orders barred the patients who came; in the third and fourth quarters of 2020 and the first and second quarters of 2021 because of the screening, mask, waiting-room and capacity conditions on every patient and the winter stay-at-home orders of California, Los Angeles County, San Diego County, St. Louis County, Nevada and the Navajo Nation; and in the third quarter of 2021 because of the Standard's screening mandate, the health-care masking rules (airborne-transmission controls on every person in the operatory), the Delta-wave orders of the metros and the orders on the hospital and surgery-center counterparties.271
The mechanism
The statute reaches orders "limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes)," and an order that confines every resident of Los Angeles County, Dallas County, Cook County or the Navajo Nation to the home limits the travel and the commerce of every patient of every practice in it.272 Alabama's stay-at-home order named emergency dental care as a permitted reason to leave home and thereby forbade every other dental visit.273 The Service's Q&A-13 addresses an employer that "responds to the lack of demand by suspending some or all of its operations," and Q&A-14 an employer whose suspension "is not due to a governmental order"; neither describes a practice whose patients were forbidden by order to leave home, and where Q&A-13 would exclude such an order it adds to the statute words the United States has represented have no force of law. A stay-at-home order on the patient base is an order "limiting commerce, travel, or group meetings" in terms; the Notice's own list of qualifying orders includes "[a] State's emergency proclamation that residents must shelter in place"; and the United States has told two courts that the ten percent figure is a "safe harbor" and not a requirement for any inquiry under the Notice.274 The hospitals and ambulatory surgery centers in which oral surgeons and pediatric dentists treat sedation cases were closed to elective cases in the spring of 2020 and again in the winter, and were governed through the third quarter of 2021 by New Jersey's directives, Pennsylvania's order and the health-care-worker vaccination orders of California, New York, Maryland and Massachusetts; when the hospital's operating room is closed to the oral surgeon's case, the oral surgeon's operation is partially suspended by the order on the hospital.275