How a Dental or Orthodontic Practice Operates
A dental or orthodontic practice sells clinical time in an operatory through eleven functions, each performed at a place, with a counterparty, on an input that a governmental order can reach and did reach. The chair, the handpiece, the sterilizer, the waiting room, the recall list, the respirator, the laboratory, the hygienist's license, the billing office, the school bus and the patient's front door are each a subject of orders. The orders of 2020 and 2021 named this industry more often and more precisely than any other outpatient industry, because nearly everything a dentist does after the examination throws an aerosol of saliva and blood into the room.1
Offices of dentists (NAICS 621210) employed 971,090 people in May 2021, among them 96,750 general dentists, 196,190 dental hygienists, 318,100 dental assistants and 296,350 office and administrative support workers, 88,740 of them receptionists, in about 132,000 private establishments.2 The Bureau of Labor Statistics' monthly count of employment in the industry records what the orders did: 954,616 in March 2020; 445,086 in April 2020; 705,753 in May; 875,007 in June; 919,258 in July; 940,330 in September; 965,468 in December 2020; 973,815 in March 2021; 984,165 in June 2021; and 983,941 in September 2021.3 The Bureau's Employment Situation for April 2020 reported that "offices of dentists" lost 503,000 jobs in a single month, more than half of the industry's March 2020 employment, a proportion no other health-care industry in the release approached.4 The functions are coded on this page as CH (chairside care and hygiene), PR (elective and aerosol-generating procedures), EM (emergency-only periods), ST (sterilization, fallow time and infection control), FD (scheduling, recall and front desk), SC (PPE and consumables), LB (dental laboratories and suppliers), HR (hiring and credentialing), OF (billing and administration), WF (workforce availability) and CB (patients and payers). The "Standard" is the Occupational Safety and Health Administration's COVID-19 Healthcare Emergency Temporary Standard, 29 C.F.R. § 1910.502; the "Service" is the Internal Revenue Service; the "Notice" is Notice 2021-20; the "United States" is the Government as litigant. The statutory test the functions are measured against, the Suspension Clause of CARES Act § 2301(c)(2)(A)(ii)(I) and I.R.C. § 3134(c)(2)(A)(ii)(I), is set out element by element at /law/statute.
CH, chairside care and hygiene
The core of the practice is the hygiene and preventive visit: a six-month recall for prophylaxis, periodontal maintenance, examination and radiographs, performed by a hygienist with an ultrasonic scaler and an air-water syringe in an open or semi-open operatory, with the dentist stepping in for the examination. A general practice runs several hygiene columns a day; the recall list is the practice's revenue base and the source of its restorative diagnoses. An order that forbids "routine hygiene," "hygiene visits" or "recall visits for periodontally-healthy patients" stops this function entirely; an order that requires a respirator for every aerosol-generating procedure, a fallow interval before the next patient enters, or one patient at a time in the reception area cuts the number of hygiene visits a column can hold.5
PR, elective and aerosol-generating procedures
Restorative dentistry (fillings, crowns, bridges), endodontics, implant placement, periodontal surgery, extractions of asymptomatic teeth, orthodontic bonding and adjustments, and cosmetic dentistry (whitening, veneers) are performed with high-speed handpieces, ultrasonic instruments and air polishing, each of which the Standard and every State reopening order classed as aerosol-generating. Orthodontic practices run their entire revenue on scheduled adjustment visits at four-to-eight-week intervals under multi-year contracts billed monthly. An order that postpones "all elective and non-urgent procedures," "any orthodontic procedures other than those necessary to relieve pain or infection," or the "initiation of crowns, bridges, or dentures" terminates this function for the period of the order; an order that conditions its resumption on N95 respirators the practice cannot buy, on testing before "non-emergent aerosolizing procedures," or on a one-week or two-week PPE supply held in inventory delays it.6
EM, emergency-only periods
Every closure order left a window for "treatment for pain, swelling, trauma, or an abscess," for "dental care related to the relief of pain and management of infection," or for "emergency dental services." During those periods the practice kept a dentist and an assistant available, triaged calls, saw a handful of patients a day, and referred the rest. Emergency care is a small fraction of a general practice's chair time; a practice confined to it had stopped the greater part of its operation by order and continued only a small fraction of what it did before the order.7
ST, sterilization, fallow time and infection control
Instruments are reprocessed between patients in a sterilization area; operatories are turned over between patients; the practice's infection-control protocol governs surface disinfection, water lines and waste. The reopening orders and board rules added to that protocol: fallow time between aerosol-generating procedures, operatory-by-operatory scheduling, high-volume evacuation, air handling and filtration, written COVID-19 procedures and staff training on them, and, under the Standard, a written plan, physical barriers, distancing and cleaning. Each addition lengthens the interval between patients and reduces the number of patients a day.8
FD, scheduling, recall and front desk
The front desk schedules recall, confirms appointments, verifies insurance, collects co-payments and manages the waiting room. The orders remade it: every patient telephoned and screened the day before the appointment; every person screened and temperature-checked at the door; the waiting room closed or reduced to one patient; companions excluded; patients waiting in cars until called; face coverings required of every entrant as one of the infection-prevention and exposure-control conditions of entry; and, under the Standard's exception, every non-employee screened before entry as the condition of the practice's exemption from the Standard. Each of those steps is labor and each reduces throughput.9
SC, PPE and consumables
The practice consumes gloves, surgical masks, face shields, gowns and, for aerosol-generating procedures under the orders, N95 or KN95 respirators, together with disinfectants and barriers. From April 7, 2020 to June 30, 2021 a federal rule allocated respirators and other scarce protective equipment by FEMA order and barred their export; the reopening orders of Florida, Arizona, Mississippi and Iowa forbade a dentist to resume unless the practice held its own supply "without relying on state or local PPE stockpiles" and had made no recent request for public equipment; Maryland and Delaware required a one-week or two-week supply on hand; the Standard required respirators for aerosol-generating procedures; and the Food and Drug Administration's emergency-use authorizations for imported and decontaminated respirators, on which dental supply houses drew, were revoked effective June 30 and July 6, 2021.10
LB, dental laboratories and suppliers
Crowns, bridges, dentures and aligners are fabricated by dental laboratories from impressions or scans and returned for seating at a second visit; supplies come through national distributors. The laboratories were closed or capped by the same elective-procedure orders that closed their customers and by the manufacturing and workplace orders of their own States; the distributors' respirator inventories were subject to the federal allocation rule. A crown that cannot be fabricated cannot be seated, and a seating that cannot be scheduled is a procedure suspended.11
HR, hiring and credentialing
Hygienists and assistants are licensed or registered by State boards, and their examinations, renewals and continuing education were suspended, converted or postponed by the boards' emergency orders; dentists' licenses were renewed on emergency terms; from August 2021 the health-care vaccination orders of Washington, Maine, Rhode Island, Illinois, Philadelphia, Los Angeles County, Pasadena and Denver required every practice in those jurisdictions to ascertain each employee's status, process exemptions, arrange testing and plan for the deadline.12
OF, billing and administration
Insurance verification, claims, collections and practice administration are performed in the office; under the stay-at-home and telework orders of March 2020 and the winter of 2020-21, the administrative staff worked remotely or not at all, and under the workplace standards of Michigan, California, Virginia, Oregon and Washington the office operated under written plans, screening and distancing.13
WF, workforce availability
The workforce is overwhelmingly women, and the school-closure orders removed from the operatory every employee who was the caregiver of a school-age child; assistants and hygienists commute by car and transit and live in the metros where the local orders were densest. School-closure orders kept parents home in the spring of 2020 and, in remote-instruction districts, through the 2020-21 school year; quarantine orders removed exposed and returning employees for ten to fourteen days; the paid-leave mandates compelled the practice to pay those absences; the conveyance order imposed an airborne-transmission control, a mask on every rider, on every transit commute from February 1, 2021; the school masking and quarantine orders of August and September 2021, infection-prevention controls on the classroom, governed the workforce's children in the third quarter of 2021.14
CB, patients and payers
The patient base was confined by the stay-at-home orders of forty-two States and territories in the spring of 2020, by the winter stay-at-home and curfew orders of the West and Midwest, by the traveler quarantines that reached patients from out of State, and by the school orders that kept children, the orthodontic patient base, at home; dental benefit carriers and Medicaid programs changed their rules for teledentistry and interim procedures under the federal blanket waivers and State insurance orders.15
Revenue lines, seasonality and geography
Revenue is billed by procedure code on completion; hygiene and restorative revenue follow the recall cycle; orthodontic revenue follows the contract schedule. The industry sells hygiene and preventive visits on a six-month recall, restorative and prosthodontic procedures, orthodontic contracts billed monthly, endodontic, periodontal and oral-surgical procedures and cosmetic services, paid by private dental benefits, self-pay and Medicaid and CHIP. Summer is the season for pediatric and orthodontic starts, when school is out; the year's end is the season for benefit-maximum procedures. The industry is dispersed in every county of every State, so that every State's dental order reached a share of it, and it is concentrated in the metros where the county health officers' orders were layered on the State's.16
The counterparty map
Patients: the stay-at-home, curfew and traveler-quarantine orders of every State and the metros (the fifty States and the metros, below). Suppliers and laboratories: the federal allocation rule and export bar, the FDA authorizations and revocations, and the manufacturing and workplace orders of the laboratories' States (the federal layer and the counterparties, below). Payers: the CMS blanket waivers and State insurance and Medicaid orders (the federal layer). Boards and regulators: the emergency rules and orders of the State boards of dental examiners, the State health departments and OSHA (the sector regulators). Schools, child care and transit: the closure orders, the school masking orders (infection-prevention controls on the classroom) and the conveyance order (an airborne-transmission control on the commute) on which the workforce's availability turned (the counterparties). Hospitals and surgery centers: the elective-procedure orders that closed the operating rooms in which oral surgeons and pediatric dentists treat sedation cases (the counterparties). Each class is inventoried by layer and applied by quarter and by function on this page.17