The Six Quarters
In each of the six quarters from April 1, 2020 through September 30, 2021, orders from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19 were in force on every day and reached the operation of dental and orthodontic practices. The instruments changed. In the second quarter of 2020 they closed the operatory to everything but emergencies and then reopened it on conditions. In the third and fourth quarters of 2020 they were the conditions themselves, the board rules, the workplace standards and the winter re-tightening. In the first and second quarters of 2021 they were the same conditions, the federal conveyance order, the National Emphasis Program and the stepped expiry of the State regimes, ending with the Standard on June 21, 2021. In the third quarter of 2021 they were that Standard, the revised enforcement program, the health-care vaccination orders of Washington, Maine, Rhode Island, Illinois, Philadelphia, Los Angeles County, Pasadena and Denver, the health-care masking rules of the reopening States, occupational-health and airborne-transmission controls, and the Delta-wave orders of the metros. This section states each quarter from its first day to its last, and states the third quarter of 2021 at the length the Service's position on that quarter requires.
The second quarter of 2020
What was in force on April 1, 2020
On April 1, 2020 an instrument confining dental and orthodontic practices to emergency care was in force in every State and the District of Columbia. In at least thirty States and the District of Columbia it was an order naming dentistry or a general elective-procedure order the dental board applied to dentists. In California, Nevada, Hawaii, Idaho, Montana, North Carolina, South Carolina, Georgia, Kansas, Missouri, Wisconsin and Wyoming it was a stay-at-home or closure order confining the patient base, in force on April 1, 2020 or within the week (Georgia from April 3, Missouri from April 6, South Carolina from April 7), together with the dental board's or health department's emergency-only direction to every licensee (Ex. WY-004; Ex. WY-005).127 In North Dakota and South Dakota it was the Governors' directives of March 20 and March 23, 2020 (Ex. ND-006; Ex. SD-005) and the boards' emergency-only direction, and from April 6, 2020 South Dakota's Executive Order 2020-12 made the postponement of non-essential elective procedures mandatory (Ex. SD-009). Washington's Proclamation 20-24 prohibited "dental, orthodontic and endodontic offices" from providing any service that, "if delayed," was "not anticipated to cause harm to the patient within the next three months," excepting only "dental care related to the relief of pain and management of infection."128 Florida's Executive Order 20-72 prohibited "dental, orthodontic and endodontic offices" from providing "any medically unnecessary, non-urgent or non-emergency procedure or surgery."129 Tennessee's Executive Order 18 provided that "[d]ental service providers ... shall not perform any non-emergency dental or oral procedures," defined to "include hygiene visits, cosmetic procedures, and other elective procedures."130 Michigan's Executive Order 2020-17 required every dental facility to postpone "any cosmetic or aesthetic procedures" and "any routine hygiene appointments," and made "a willful violation of this order ... a misdemeanor."131 Minnesota's Executive Order 20-09 postponed "indefinitely" all "non-emergent or elective dental care" that used protective equipment.132 New Jersey's Executive Order 109 suspended "all 'elective' surgeries performed on adults, whether medical or dental, and all 'elective' invasive procedures performed on adults, whether medical or dental."133 Iowa's proclamation itemized the prohibited dental procedures, from "all routine hygiene" to the "initiation of crowns, bridges, or dentures," and made the Dental Board's investigators peace officers for its enforcement.134 Kentucky's Cabinet had ordered that "ALL non-emergent, non-urgent in-person medical, surgical, dental, and any other healthcare practice or procedure must have immediately ceased."135 Vermont had ordered the postponement of "all non-essential adult elective surgery and medical and surgical procedures, including all dental procedures."136 Pennsylvania's Department of Health had directed dental facilities to "cease all dental treatment except urgent and emergency procedures."137 Oklahoma's Governor had ordered that "Oklahomans and medical providers in Oklahoma shall postpone all elective surgeries, minor medical procedures, and non-emergency dental procedures," extended to April 30.138 Texas's GA-09 required "all licensed health care professionals" to postpone every procedure "not immediately medically necessary," and the Board of Dental Examiners applied it to every dentist in the State.139 Oregon's Executive Order 20-10 cancelled "all elective and non-urgent procedures across all settings that utilize PPE, including but not limited to ... dental clinics."140 Colorado's Executive Order D 2020 009 ordered "the temporary cessation of all voluntary or elective surgeries and procedures," dental included.141 Alabama's State Health Officer had postponed "all dental, medical, or surgical procedures" from 5:00 p.m. on March 28, 2020 and, on April 3, 2020, carried the postponement into a stay-at-home order that named emergency dental care as one of the few reasons a resident could leave home.142 Virginia, Maryland, Delaware, Massachusetts, New York, Ohio, Indiana, Illinois, Nebraska, Arkansas, Mississippi, Louisiana, West Virginia, Utah, New Mexico, Arizona, Alaska, Rhode Island, Maine, New Hampshire, the District of Columbia and Puerto Rico had instruments of the same kind in force, inventoried by layer above and in the fifty-State table.143 The Department of Defense had postponed every elective dental procedure in its treatment facilities from March 31, 2020, the Department of Veterans Affairs had announced the same postponement across its facilities from March 27, and FEMA's allocation rule governed every respirator in the country from April 7.144 The Bureau of Labor Statistics recorded the result: offices of dentists lost 503,000 jobs in April 2020, and industry employment fell from 954,616 in March to 445,086 in April.145
The step-down
The emergency-only orders expired or were replaced on a schedule that ran from April 22 to June 8, 2020, and every replacement was itself an order: Utah April 22; Indiana, Colorado and Kentucky April 27; Mississippi April 27; Alabama (5:00 p.m.) and West Virginia April 30; Virginia, Texas, Ohio, Idaho, Georgia and Oklahoma May 1; Oregon May 1; Alaska, Florida, Nebraska, Nevada, Missouri and Kansas May 4; Tennessee May 6; Maryland and California May 7; Iowa May 8; Rhode Island May 9; Minnesota, Illinois and New Hampshire May 11; New Mexico May 12; Washington and Arkansas May 18; Delaware May 20; Vermont May 22; New Jersey May 26; Michigan and the District of Columbia May 29; New York June 1; Pennsylvania June 3; Massachusetts June 8.146 Each date is the effective date of the instrument that permitted resumption, and each instrument permitted it only on conditions. Texas's GA-19 provided that every licensed professional "shall be limited in their practice by, and must comply with," the licensing agency's emergency rules, and the Board's rule 108.7 took effect the same day.147 Iowa's proclamation provided that "[t]he performance of any dental procedures except in compliance with paragraph A continue to be prohibited."148 Arizona's Executive Order 2020-32 permitted resumption only by exemption, granted on a "universal symptom screening process for all staff, patients, and visitors prior to entry," and provided that the exempted practice "is not eligible to request or receive PPE distributed by the state or county health departments."149 Mississippi's Executive Order 1477 permitted resumption "in accordance with the guidelines established by the Mississippi State Department of Health including conserving disposable personal protective equipment," and required each practice to certify that it "will not request any personal protective equipment from any public source."150 New Mexico's order of April 30, 2020 prohibited "dental, orthodontic and endodontic offices" from non-essential care "except under the conditions provided below."151 Oregon's Executive Order 20-22 permitted resumption only "to the extent they comply with guidance or administrative rules issued by the Oregon Health Authority," and gave that guidance "the full force and effect of law."152 Maryland's Amended Directive conditioned every dental practice on infection-prevention and exposure-control requirements, a one-week supply of protective equipment, screening of every patient and worker and face coverings on every provider, on pain of immediate restriction to urgent care.153 Minnesota's Executive Order 20-51 conditioned every dental facility on a written plan and an internal oversight structure.154 Florida's Executive Order 20-112 conditioned resumption on protective-equipment capacity.155 The county judges of Dallas, Tarrant and Denton Counties and the Mayor of Fort Worth prohibited elective dental procedures from March 22 to 24, 2020 until the Governor's orders displaced theirs.156
What was in force on June 30, 2020
On June 30, 2020, no dental practice in the United States operated as it had operated on February 29, 2020. The FFCRA paid-leave mandate and FEMA's allocation rule governed every practice in the country,157 and in every State that had reopened dentistry on conditions those conditions were orders in force: every practice in Texas operated under rule 108.7; every practice in Iowa under paragraph A of the proclamation and the Board's Guidelines; every practice in Minnesota under Executive Order 20-51; every practice in Oregon under Executive Order 20-22 and the Health Authority's guidance; every practice in New York under the Interim Guidance for Dentistry; every practice in Arizona under its exemption; every practice in Louisiana under Notice/Order ALL-020; every practice in Colorado under Public Health Order 20-29; every practice in Washington under Proclamation 20-24.1 and WAC 296-800-14035; every practice in Kentucky under the Phase I order; every practice in Maryland under the Amended Directive; every practice in New Jersey under Executive Directive 20-016; every practice in Connecticut under the Safe Workplace Rules; every practice in Alaska under Appendix 03; every practice in Nevada, Alabama, Tennessee, Oklahoma, North Carolina and Nebraska under the board's protocol, policy or resolution, binding on every licensee as the standard of care and enforced by license discipline; every practice in Los Angeles County under the Social Distancing Protocol and face-covering orders, workplace infection-prevention and exposure-control requirements on every open business, in Dallas and Harris Counties under the June 19, 2020 health-and-safety-policy orders, in Maricopa County under the June 20, 2020 face-covering regulations (exposure-control requirements binding every place of public accommodation), in Minneapolis under Emergency Regulation 2020-12, and in every metro under the county's or city's order.158
In the second quarter of 2020 the emergency-only orders suspended chairside care and hygiene (CH), elective and aerosol-generating procedures (PR), scheduling and recall (FD), the laboratory pipeline (LB) and the sedation cases of the hospital and surgery-center counterparties (CB) in their entirety for four to ten weeks, and the reopening instruments partially suspended every one of the eleven functions for the remainder of the quarter through their screening, protective-equipment, fallow-time, capacity, waiting-room and written-plan conditions. The function-by-function section states each function.
The third quarter of 2020
What was in force
On July 1, 2020 every instrument named in the preceding paragraph was in force, and on September 30, 2020 every one of them remained in force; Utah's conditions had expired on May 15, 2020 and are not counted among them, and Alabama's return-to-practice protocol remained a rule until April 9, 2021.159 Texas readopted rule 108.7 on August 25, 2020 for a further 120 days.160 Iowa's Governor continued paragraph A by the proclamations of June 25, July 24, August 21 and September 18, 2020.161 Virginia's Safety and Health Codes Board's emergency temporary standard bound every dental office in the Commonwealth from July 27, 2020 to a written infectious disease preparedness and response plan, screening, distancing, masking, exclusion and reporting rules.162 Kentucky's Cabinet modified the health-care order on September 10, 2020 and kept it in force.163 Alaska's Appendix 03 was revised August 5, 2020 and ran under Mandate 015 to November 15, 2020.164 Arkansas's directive on elective dental services, revised June 22, 2020, and its Phase IV directive of August 3, 2020 governed every dental office.165 Kansas's statewide face-covering order, an exposure-control requirement that every business require face coverings of its employees, customers and visitors, took effect July 3, 2020.166 Jefferson Parish's indoor mask proclamation took effect July 1, 2020 as an exposure-control requirement enforced by a $500 fine on the admitting business; Harris County's face-covering order, an exposure-control requirement that every business adopt a health-and-safety policy, was amended July 1 and extended August 26, 2020; Dallas County's supplemental order of August 4, 2020 required every business to adopt a health-and-safety policy; Maricopa County's face-covering regulations governed every place of public accommodation as exposure-control requirements on the business and its patrons.167 FEMA extended its allocation rule on August 10, 2020, and the FFCRA mandate ran on.168 Industry employment recovered to 919,258 in July, 945,250 in August and 940,330 in September 2020, between 9,000 and 36,000 below the March 2020 level and between 39,000 and 66,000 below February 2020, in a quarter in which the profession worked through the recall backlog the closure orders had created.169
Chairside care and hygiene (CH) and elective and aerosol-generating procedures (PR) operated under the fallow-time, respirator, screening and aerosol-control conditions of the State rules; scheduling and recall (FD) operated under the telephone-screening, staggered-appointment and waiting-room conditions; sterilization (ST) under the between-patient cleaning and air-clearance conditions; PPE and consumables (SC) under FEMA's allocation and the States' "without relying on state or local PPE stockpiles" conditions; workforce availability (WF) under the FFCRA and the quarantine orders; hiring and credentialing (HR) under the boards' licensure, renewal and training conditions; billing and administration (OF) under the written-plan, training, attestation and reporting conditions; and patients and payers (CB) under the stay-home orders and the face-covering requirements, exposure controls on every entrant, of the States and metros.170
The fourth quarter of 2020
What was in force
On October 1, 2020 the third-quarter regime was in force in every State that had one. The quarter then added the winter instruments. Detroit's Emergency Order for Control of Epidemic of October 9, 2020 required every outpatient facility, "including dental offices," to screen every patient, mask every patient, limit its waiting room and its appointments and use telehealth "to the greatest extent possible," workplace infection-prevention and exposure-control requirements imposed on every outpatient facility in the city.171 MIOSHA's emergency rules bound every Michigan workplace from October 14, 2020.172 Pennsylvania's Department of Health required every provider to report antigen test results from October 15, 2020, and the Secretary of Health's order of November 23, 2020 required the reduction of elective procedures in regions with low acute-care capacity.173 Nebraska's directed health measures of November 13, 2020 limited elective surgeries from November 16, 2020.174 Illinois's Executive Order 2020-73 of November 18, 2020 imposed Tier 3 mitigations statewide from 12:01 a.m. on November 20, 2020.175 St. Louis County re-imposed a Safer At Home order from November 17, 2020; Washington's Proclamation 20-25.8 of November 15, 2020 closed indoor service and Proclamation 20-24.2 imposed requirements for non-urgent medical and dental procedures from December 3, 2020; Oregon's Executive Order 20-66 of December 2, 2020 imposed the county-tier framework; California's Regional Stay at Home Order of December 3, 2020 confined the patient base in every region whose intensive-care capacity fell below fifteen percent, and Cal/OSHA's emergency temporary standards bound every dental employer in California from November 30, 2020; Los Angeles County's Temporary Targeted Safer at Home Order and San Diego County's orders confined their populations; Nevada's Directive 035 of November 22, 2020 imposed the statewide pause; Massachusetts's Commissioner curtailed non-essential elective procedures again from December 11, 2020; New Mexico's order of December 9, 2020 restricted non-essential surgical procedures from December 11, 2020; Indiana's Executive Order 20-50 of December 10, 2020 directed hospitals to postpone non-emergent procedures from December 16, 2020; Mississippi's Executive Orders 1527 and 1535 required hospitals to reserve capacity; Cook County's order of December 11, 2020 imposed mitigations on every business; the Navajo Nation locked down its businesses from November 16, 2020; Iowa's proclamations of November 10 and 16 and December 9 and 16, 2020 continued paragraph A and required remote work where possible; North Dakota's capacity and mask orders, occupancy and airborne-transmission controls on every indoor business, ran from November 14, 2020; Florida's Department of Health's Emergency Order 20-015 of December 23, 2020 continued the licensure orders; and FEMA extended its allocation rule to June 30, 2021 on December 31, 2020.176 Every earlier State condition on dental practice remained in force through December 31, 2020.177 Industry employment stood at 956,965, 959,949 and 965,468 in October, November and December 2020, between 19,000 and 28,000 below February 2020 in every month of a quarter in which the winter instruments re-tightened the conditions of practice.178
The winter instruments partially suspended chairside care and hygiene (CH) and elective procedures (PR) through the renewed waiting-room, appointment and procedure limits; sterilization (ST) and scheduling (FD) through the continuing between-patient, screening and waiting-room conditions and Detroit's appointment limits; workforce availability (WF) through the quarantine, school-closure and stay-home orders and MIOSHA's and Cal/OSHA's exclusion rules; hiring and credentialing (HR) under the boards' licensure, renewal and training conditions; PPE and consumables (SC) through FEMA's allocation; billing and administration (OF) through MIOSHA's, Cal/OSHA's and Virginia's written-plan, training and recordkeeping rules; the laboratory pipeline (LB) through the workplace orders on the laboratories' own States; and patients and payers (CB) through the stay-at-home orders of California, Los Angeles County, San Diego County, St. Louis County, Nevada and the Navajo Nation and the hospital orders of Pennsylvania, Massachusetts, New Mexico, Nebraska, Indiana and Mississippi.
The first quarter of 2021
What was in force
On January 1, 2021 the winter regime was in force. California's Regional Stay at Home Order ran to January 25, 2021 and its Hospital Surge Order of January 5, 2021 conditioned every hospital; Los Angeles County's order ran with it; New Mexico's surgical restriction ran to January 4, 2021; North Dakota's orders ran to January 18, 2021; Massachusetts's procedures order ran to March 1, 2021.179 The Centers for Disease Control's conveyance order took effect at 11:59 p.m. on February 1, 2021 and imposed an airborne-transmission control, a mask on every rider, on every transit commute of every dental employee and every transit trip of every patient, enforced by TSA security directives with civil penalties.180 Virginia's permanent standard took effect January 27, 2021.181 Texas amended rule 108.7 on February 19, 2021 and kept it in force.182 Iowa's proclamations of January 7, February 5 and March 5, 2021 continued paragraph A.183 OSHA's National Emphasis Program of March 12, 2021 targeted inspection at the industries with the highest exposure and named offices of dentists among them.184 Cal/OSHA's, MIOSHA's and Washington's workplace standards, New York's Interim Guidance for Dentistry, Minnesota's Executive Order 20-51, Oregon's Executive Order 20-22, Colorado's Public Health Order 20-29, Louisiana's dental regime, Ohio's procedures order, Arizona's exemption regime, Kentucky's health-care order, Connecticut's rules, New Jersey's Executive Directive 20-016, Alabama's return-to-practice protocol, New Hampshire's dental guidelines made mandatory by the Governor's Stay at Home 2.0 emergency order and every State's face-covering order, an exposure-control requirement on every indoor public space, ran through the quarter, and the FDA reissued the imported-respirator authorization on March 24, 2021.185 Kansas's face-covering order expired March 31, 2021; Minnesota's Executive Order 21-11 of March 12, 2021 began that State's step-down; New Hampshire's Emergency Order #86 of March 1, 2021 admitted retired health-care workers to practice; Texas's GA-34 of March 2, 2021 began the transition; Kentucky's General Assembly adopted HJR 77 on March 30, 2021; Arizona's exemption regime ended April 1, 2021.186 Industry employment stood at 962,968, 969,429 and 973,815, still below February 2020 in every month.187
The same functions were partially suspended by the same classes of instrument as in the fourth quarter of 2020, hiring and credentialing (HR) under the boards' licensure, renewal and training conditions among them, with the conveyance order added to workforce availability (WF) and patients and payers (CB) from February 1, 2021 and the National Emphasis Program added to billing and administration (OF) and PPE and consumables (SC) from March 12, 2021.
The second quarter of 2021
What was in force
On April 1, 2021 every regime named in the preceding paragraph but Kansas's was in force, Arizona's exemption regime ending that day (Ex. AZ-038); Wyoming's Statewide Public Health Orders, narrowed by the Twenty-third Continuation of March 12, 2021, effective March 16, 2021, to school, child-care and large-event rules, ran to May 31, 2021 (Ex. WY-050; Ex. WY-058). The quarter is the quarter of stepped expiry and of the Standard's arrival. Ohio's procedures order was rescinded April 5, 2021; Alabama's employer duties ended April 9, 2021; Colorado's Thirteenth Amended Public Health Order 20-29 of April 9, 2021 was superseded April 16, 2021; New Hampshire's Stay at Home 2.0 dental guidelines, mandatory under the Governor's emergency order, ended May 7, 2021; Wyoming's statewide public health orders expired May 31, 2021; Delaware's Twenty-Ninth Modification of May 18, 2021 set the end of its emergency at July 13, 2021; Michigan's MDHHS residential-care order of May 21, 2021, a counterparty order on the facilities in which the industry's patients live, and MIOSHA's amended rules of May 24, 2021 preceded the rules' rescission on June 22, 2021; Louisiana released its dental conditions at 8:00 a.m. on May 24, 2021; New Jersey's Executive Order 242 of May 24, 2021 ended the general face-covering order and retained the health-care-setting requirement, an airborne-transmission control on every person in the office; Minnesota's Executive Order 20-51 was rescinded at 11:59 p.m. on May 27, 2021; Connecticut's universal-masking rule for health-care settings took effect May 19, 2021 and Massachusetts's health-care face-covering order May 29, 2021, airborne-transmission controls retained on every person in the office after the general orders ended; Minneapolis's face-covering regulation, an exposure-control requirement on every space of public accommodation, ended June 1, 2021; Massachusetts's paid-leave law took effect June 7, 2021; Chicago's Phase 5 order of June 11, 2021 kept masks in health-care settings as an airborne-transmission control on every person in the office; California's Beyond the Blueprint order of June 11, 2021 ended the tiers and Cal/OSHA readopted its standards on June 17, 2021; New Jersey's ambulatory-surgery directive was amended June 16, 2021; Texas's rule 108.7 expired June 18, 2021; Idaho's proclamation of June 18, 2021 continued its licensing suspensions; New York's Interim Guidance for Dentistry ended June 25, 2021; Iowa's proclamation expired at 11:59 p.m. on June 26, 2021; Nevada OSHA adopted the Standard on June 24, 2021 effective July 1; the FDA's revocations of the decontaminated-respirator authorizations took effect June 30, 2021; FEMA's allocation rule ended June 30, 2021 after the additional exemptions of June 11, 2021; Oregon's Executive Order 20-22 was rescinded at 12:01 a.m. on June 30, 2021 and Washington's phased framework ended June 30, 2021; New Mexico's Public Health Emergency Order of June 30, 2021, effective July 1, 2021, ended the county framework that the Order of June 2, 2021 had carried through June 30; and Minnesota's peacetime emergency ended July 1, 2021.188 The instruments that arrived were federal: FEMA's exemptions of June 11; OSHA's Healthcare Emergency Temporary Standard, announced June 10 and published and effective June 21, 2021 (86 Fed. Reg. 32376), with compliance dates of July 6 and July 21; and OSHA's inspection directive of June 28, 2021.189 Industry employment stood at 982,074, 985,964 and 984,165; May 2021 was the first month above February 2020 (984,542), and June 2021 fell below it again, in the quarter in which the State regimes stepped down.190
Through the step-down the same functions were partially suspended by the same classes of instrument until each instrument's end date, and from June 21, 2021 by the Standard as to every function it governs, stated under the third quarter.
The third quarter of 2021
On every day from July 1 through September 30, 2021, the operation of dental and orthodontic practices was partially suspended due to orders from an appropriate governmental authority. Orders reaching this industry were in force on the first day of the quarter, on the last day and on every day between. Four were federal, in force on every one of those days, and reached every practice in the country; nine were health-care vaccination orders of four States, four metros and one territory, eight of which named dental facilities, offices, practices or practitioners in terms and one of which (Puerto Rico's health sector) reached every operatory within it by class; the health-care masking rules, occupational-health and airborne-transmission controls, of thirteen States, the District of Columbia and Chicago and the workplace standards of five States reached every practice within theirs; the Delta-wave orders of the metros reached the practices in the nation's largest markets; and the counterparty orders on hospitals, surgery centers, schools and transit reached every practice through the persons and institutions it depends on. The Service's Letter 105C says of this quarter that "there were no government orders related to COVID-19 in effect ... which could have fully or partially suspended your trade or business." As to this industry and this quarter the statement is not a judgment about weight. It is a statement about existence, and it is factually incorrect.
(A) What was in force on July 1, 2021
On July 1, 2021 the following instruments were in force and reached dental and orthodontic practices: the Occupational Safety and Health Administration's COVID-19 Healthcare Emergency Temporary Standard, 29 C.F.R. part 1910, subpart U, effective June 21, 2021, with its first compliance date five days away; the Centers for Disease Control's conveyance and transportation-hub order, an airborne-transmission control on every rider; the Food and Drug Administration's emergency-use authorizations for respirators, as narrowed by the revocations effective June 30 and July 6, 2021; Cal/OSHA's readopted emergency temporary standards; Virginia's permanent standard; Washington's WAC 296-800-14035; Nevada OSHA's adoption of the Standard, effective that day; the health-care-setting masking rules, airborne-transmission controls on every person in the operatory, of New Jersey (Executive Order 242), Massachusetts (the Commissioner's order of May 28, 2021), Connecticut (the Department of Public Health's rule of May 19, 2021) and Kentucky (Executive Order 2021-386 of June 11, 2021, retaining masks in health-care settings), Chicago's Phase 5 order (Ex. MET-CHI-018) and Hawaii's statewide face-covering requirement, joined between July 28 and August 30, 2021 by the health-care masking rules of California, Nevada, the District of Columbia, Louisiana, Oregon, New Mexico, Washington, New York and Illinois as B-13 states; the paid-leave mandates of New York, New Jersey, Colorado and Massachusetts; Pennsylvania's Act 21 dental waivers and its elective-procedures order; New Jersey's ambulatory-surgery directives; Chicago's, San Francisco's, Philadelphia's and San Diego County's reopening orders with their health-care and screening conditions; Honolulu's tier orders, Tier 4 to July 8 and Tier 5 from July 8, 2021 (Ex. MET-HNL-030; Ex. MET-HNL-032); and the Department of Defense's resumption memorandum of May 21, 2020, whose conditions remained the standing terms on which each military dental treatment facility resumed elective care (Ex. AGY-DEFENSE-GUARD-045; the Library records no end date, resumption being "by local decision") and, from July 28, August 13 and September 8, 2021, the installation mask, contractor vaccination and attestation orders stated in B-5.191 The industry employed 995,790 persons that month, 11,000 above February 2020, and its establishments numbered 132,842 in the quarter; the industry was open. The Suspension Clause does not ask whether it was open. It asks whether its operation was partially suspended due to orders, and an operatory that must screen every patient at the door, exclude every suspected or confirmed case, put every provider in a respirator, gown, gloves and eye protection for every aerosol-generating procedure on a suspected or confirmed case and clear and disinfect the room afterward, log every employee case, remove every exposed employee with pay and, in the jurisdictions of B-6 through B-12 and B-18, verify and document the vaccination status of every employee and every new hire, is an operatory a portion of whose operation the orders have interrupted.192
(A), continued: what the 2021 statute asks
For the third quarter of 2021 the credit arises under I.R.C. § 3134, enacted by § 9651 of the American Rescue Plan Act on March 11, 2021, and the suspension test is § 3134(c)(2)(A)(ii)(I), which re-enacts the words of CARES § 2301(c)(2)(A)(ii)(I) without change: "the operation of the trade or business described in clause (i) is fully or partially suspended during the calendar quarter due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes) due to the coronavirus disease 2019 (COVID-19)."193 Congress enacted those words on March 11, 2021, after the Notice had been released on March 1, 2021 (and published in the Internal Revenue Bulletin on March 15, 2021) and while the emergency orders of every State were in force, and it made the credit available for the third quarter of 2021 on the same two prongs. It legislated a suspension test for a quarter it knew would be governed by the conditions, mandates and vaccination orders then being issued, and that test is the one this analysis applies. The Infrastructure Investment and Jobs Act of November 15, 2021 ended the credit for the fourth quarter of 2021 for every employer but a recovery startup business and left the third quarter of 2021 untouched.194 Pub. L. 119-21, § 70605, enacted July 4, 2025, barred claims for the third and fourth quarters of 2021 filed after January 31, 2024 and left every timely claim and every timely refund suit to be decided on the statute's words.195
(B) The instruments
The nineteen classes of instrument in force between July 1 and September 30, 2021 follow, each with its issuer, dates, operative clause, enforcement, status on July 1 and September 30 and the functions it reached.
B-1. The Standard
Issuer: the Secretary of Labor, through the Occupational Safety and Health Administration, under 29 U.S.C. § 655(c). Dates: announced by OSHA June 10, 2021; published and effective June 21, 2021, 86 Fed. Reg. 32376 (the Federal Register document's signature block is undated); compliance required by July 6, 2021 for every provision but physical barriers, ventilation and training, and by July 21, 2021 for those; in force on every day of the third quarter of 2021; the non-recordkeeping provisions withdrawn December 27, 2021. Operative clause: the Standard "applies to all settings where any employee provides healthcare services or healthcare support services," and excepts a "non-hospital ambulatory care setting" only "where all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings."196 A dental office is a non-hospital ambulatory care setting. It therefore had two choices under the Standard, both of them orders: comply with the Standard in full, or screen every non-employee before entry and turn away every suspected or confirmed case, which is itself the Standard's paragraph (d) imposed as the price of the exception. Every dental office in the country operated in the third quarter of 2021 under one of those two federal mandates. The Standard's provisions, for a practice within it, required a written COVID-19 plan with a designated safety coordinator and a workplace-specific hazard assessment (paragraph (c)); patient screening and management, including limiting and monitoring points of entry and screening every patient and visitor (paragraph (d)); standard and transmission-based precautions (paragraph (e)); facemasks for every employee indoors and respirators, gowns, gloves and eye protection for every employee exposed to a person with suspected or confirmed COVID-19 (paragraph (f)); for every aerosol-generating procedure on such a person, limiting the employees present to those essential, performing the procedure in an airborne infection isolation room if available and cleaning and disinfecting the room afterward (paragraph (g)); physical distancing of six feet (paragraph (h)); cleanable barriers at fixed work locations (paragraph (i)); cleaning and disinfection (paragraph (j)); ventilation controls (paragraph (k)); screening of every employee before every shift, notification of exposures within 24 hours, removal of exposed and symptomatic employees from the workplace, and medical removal protection benefits of up to $1,400 per week for the removed employee (paragraph (l)); paid time for vaccination and recovery (paragraph (m)); training (paragraph (n)); anti-retaliation (paragraph (o)); every requirement at no cost to the employee (paragraph (p)); a COVID-19 log of every employee case and its retention (paragraph (q)); and reporting of every work-related fatality within 8 hours and every in-patient hospitalization within 24 hours (paragraph (r)), with a mini respiratory protection program at 29 C.F.R. § 1910.504. Enforcement: the OSH Act's penalties, 29 U.S.C. § 666, then $13,653 per serious violation and $136,532 per willful or repeated violation, by inspection under the National Emphasis Program below. Status: in force July 1 and September 30, 2021. Functions: CH, PR, ST, FD, SC, HR, OF, WF, CB. The Standard was an order, from an appropriate governmental authority, that limited the commerce of every dental office in the United States due to COVID-19. The Service's own Chief Counsel, in AM 2023-007, excluded this Standard by name from its conclusion that OSHA "communications" are not orders.197
B-2. The revised National Emphasis Program
Issuer: OSHA. Dates: DIR 2021-03, July 7, 2021, superseding DIR 2021-01 of March 12, 2021; in force through the quarter. Operative clause: the directive targeted programmed inspections at the industries in its Appendix A, which lists NAICS 621210, offices of dentists, and directed inspections of the Standard under DIR 2021-02.198 Enforcement: the inspection and citation process of the OSH Act. Status: in force July 7 through September 30, 2021, with DIR 2021-01 in force July 1 through July 6. Functions: OF, SC, ST, WF. An industry whose federal regulator has named it, by code, as a target of programmed inspection under a mandatory standard is an industry whose operation the order reaches.
B-3. The conveyance order
Issuer: the Centers for Disease Control and Prevention, under 42 U.S.C. § 264 and 42 C.F.R. §§ 70.2 and 71.31(b), enforced by TSA security directives under 49 U.S.C. § 114. Dates: signed January 29, 2021; effective 11:59 p.m. February 1, 2021; extended through the quarter. Operative clause: every person must wear a mask while boarding, disembarking and traveling on any conveyance into or within the United States and at every transportation hub. Enforcement: criminal penalties under 42 U.S.C. § 271 and 18 U.S.C. § 3559 and TSA civil penalties. Status: in force July 1 and September 30, 2021. Functions: WF, CB. In the metropolitan markets in which the industry's hygienists, assistants and front-desk staff commute by rail and bus and its patients arrive the same way, the order, an airborne-transmission control on every rider, was a condition of every workday.199
B-4. The respirator authorizations and revocations
Issuer: the Secretary of Health and Human Services and the Food and Drug Administration, under 21 U.S.C. § 360bbb-3. Dates: the decontamination-system authorizations revoked effective June 30, 2021; the imported non-NIOSH respirator authorization revoked effective July 6, 2021; the NIOSH-approved respirator authorization reissued July 12, 2021, withdrawing authorization for decontaminated respirators and respirators beyond their manufacturer-designated shelf life. Operative clause: the letters of authorization and revocation determined which respirators a dental office could lawfully use for the aerosol-generating procedures the Standard and the State rules governed.200 Enforcement: the Federal Food, Drug, and Cosmetic Act's adulteration, misbranding and prohibited-acts provisions, 21 U.S.C. §§ 331, 351, 352, as the letters of authorization and revocation recite (Ex. AGY-FED-HEALTH-OTHER-048; Ex. AGY-FED-HEALTH-OTHER-049). Status: in force throughout the quarter. Functions: SC, PR, ST. An order that removes from lawful use the respirator inventory a practice bought under the prior authorization is an order that limits its commerce.
B-5. The federal dental facilities and contractors
Issuer: the Deputy Secretary of Defense; the Under Secretary of Defense (Personnel and Readiness); the Secretary of Veterans Affairs. Dates: July 28, 2021 (indoor masks for every person on every installation in an area of substantial or high transmission, regardless of vaccination, an airborne-transmission control imposed on every installation workplace and on every contractor who enters it); September 8, 2021 (Force Health Protection Supplement 23: attestation and testing); August 13, 2021 (VA vaccination mandate expanded to "volunteers and contractors who work in VHA facilities"). Operative clause: as stated. Enforcement: the terms of the contracts and the installations' access control. Status: in force from their dates through September 30, 2021. Functions: WF, HR, OF, CB. The contract dentists, hygienists and dental assistants who staff military and veterans' dental clinics are employees of private dental practices and staffing companies; the orders reached their employers through them.201
B-6. Washington Proclamation 21-14
Issuer: the Governor of Washington under RCW 43.06.220. Dates: August 9, 2021; amended August 20, 2021 (21-14.1); in force through the quarter; full-vaccination deadline October 18, 2021, which required a final dose by October 4, 2021. Operative clause: the Proclamation prohibited every operator of a "Health Care Setting," defined to include "Dental and dental specialty facilities," from permitting any health-care provider to work after October 18, 2021 without proof of full vaccination or an exemption, and required every operator to verify and document the status of every worker. Enforcement: RCW 43.06.220(5), gross misdemeanor.202 Status: in force August 9 through September 30, 2021, with every verification, documentation, exemption-processing and hiring step falling within the quarter. Functions: HR, WF, OF, CH. A practice that must decide in September whom it may employ in October has had its hiring and staffing operations interrupted in September.
B-7. Maine, 10-144 C.M.R. ch. 264
Issuer: the Maine Department of Health and Human Services and the Maine Center for Disease Control and Prevention, by emergency rule under 22 M.R.S. § 802 and 5 M.R.S. § 8054. Dates: adopted August 12, 2021; effective on adoption; enforcement from October 29, 2021. Operative clause: the rule "requires employees of Designated Health Care Facilities, Dental Health Practices, and EMS Organizations to become immunized to COVID-19," and treats contractors as employees. Enforcement: licensing discipline of the practice and the practitioner. Status: in force August 12 through September 30, 2021. Functions: HR, WF, OF. The First Circuit affirmed the district court's refusal of a preliminary injunction against the rule on October 19, 2021.203
B-8. Illinois Executive Order 2021-20
Issuer: the Governor of Illinois under the Illinois Emergency Management Agency Act. Dates: August 26, 2021; amended September 3, 2021 by Executive Order 2021-22; in force through the quarter. Operative clause: every "Health Care Worker" at a "Health Care Facility," defined to include "dental offices," was required to receive a first dose by September 5, 2021 (extended to September 19, 2021) and to be fully vaccinated within thirty days thereafter, or to be tested at least weekly; every facility was required to exclude a non-compliant worker; and, as an airborne-transmission control on every indoor workplace open to the public, imposed alongside the vaccination-or-testing condition on every health-care worker, every person in the State was required to wear a mask in every indoor public place from August 30, 2021. Enforcement: 20 ILCS 3305/19 and the Department of Public Health's licensing authority.204 Status: in force August 26 through September 30, 2021. Functions: HR, WF, OF, CH, FD, CB.
B-9. Rhode Island, 216-RICR-20-15-8
Issuer: the Rhode Island Department of Health, by emergency amendment under R.I. Gen. Laws § 23-1-17 and § 42-35-2.10. Dates: August 17, 2021; vaccination deadline October 1, 2021. Operative clause: every "health care provider" licensed by the Department, "including, but not limited to, a physician, dentist," and every "health care worker" in a "health care facility" was required to be vaccinated by October 1, 2021, and every facility and provider was required to ensure it. Enforcement: licensing discipline and R.I. Gen. Laws § 23-1-25.205 Status: in force August 17 through September 30, 2021. Functions: HR, WF, OF.
B-10. Philadelphia
Issuer: the Philadelphia Board of Health and the Health Commissioner. Dates: Full Reopening Order June 15, 2021 (masks at every healthcare institution); amendment August 11, 2021 (indoor masks from August 12, 2021, with the vaccinated-only exception withheld from health-care settings); emergency regulation August 16, 2021 (vaccination of healthcare workers at every institution providing "dental" services, with double-masking for the unvaccinated until the October 15, 2021 deadline); Health Alert August 25, 2021 construing the regulation. Operative clause: as stated; the mask conditions are occupational-health and airborne-transmission controls retained on every person in a health-care setting regardless of vaccination status, to which the regulation of August 16, 2021 added the vaccination condition and the double-masking of every unvaccinated worker until the October 15, 2021 deadline. Enforcement: the Philadelphia Code's health-code penalties and licensing.206 Status: the reopening order's health-care mask condition in force July 1 through September 30, 2021; the vaccination regulation from August 16, 2021. Functions: CH, FD, HR, WF, OF, CB.
B-11. Los Angeles County and Pasadena
Issuer: the Los Angeles County Health Officer under Cal. Health & Safety Code §§ 101040, 101085 and 120175; the Pasadena Health Officer. Dates: universal indoor masking from 11:59 p.m. on July 17, 2021; the Health Care Worker Vaccination Requirement of August 12, 2021, with full vaccination required by September 30, 2021; Pasadena's parallel order effective August 21, 2021. Operative clause: every employer of a health-care worker at a "Clinics & Doctor Offices" setting, defined at paragraph a(x) to include "dental" practices, and at any "dental office" among the health care facilities the order recites, was required to document the full vaccination of every worker by September 30, 2021 and to exclude or test the unvaccinated; every person in every indoor public setting was required to wear a mask, an airborne-transmission control imposed on every indoor workplace open to the public regardless of vaccination status and enforced against the business that admitted the public. Enforcement: Cal. Health & Safety Code § 120295, misdemeanor.207 Status: the universal indoor-masking order in force July 17 through September 30, 2021; the vaccination order August 12 through September 30, 2021, with its deadline on the quarter's last day. Functions: HR, WF, OF, CH, FD, CB. Los Angeles County is the most populous county in the United States, and no local health officer's order of the quarter reached more dental offices than this one.
B-12. Denver
Issuer: the Denver Department of Public Health and Environment under D.R.M.C. § 24-16 and C.R.S. § 25-1-506. Dates: August 2, 2021; full vaccination required by September 30, 2021. Operative clause: the personnel of every hospital, care facility, "clinical setting" and "limited healthcare setting" in the City and County of Denver were required to be fully vaccinated by September 30, 2021, and every such entity was required to verify it; the order defines "Clinical settings" to mean "ambulance service centers, urgent care centers, non-ambulatory surgical structures, clinics, dentist offices, doctor offices, and non-urgent care medical structures." Enforcement: D.R.M.C. § 24-16 penalties.208 Status: in force August 2 through September 30, 2021. Functions: HR, WF, OF.
B-13. The health-care masking rules of the States
Issuers and dates: New Jersey Executive Order 242 (May 24, 2021, retaining face coverings in health-care settings); Massachusetts Commissioner's order of May 28, 2021 (effective May 29, 2021); Connecticut's rule of May 19, 2021 and Department of Public Health order of August 7, 2021; Kentucky Executive Order 2021-386 (June 11, 2021, retaining masks in health-care settings, to September 7, 2021); California's State Public Health Officer Order of June 11, 2021 incorporating the Guidance for the Use of Face Coverings of July 28, 2021 (masks on every person in every health-care setting regardless of vaccination); the District of Columbia's Mayor's Order 2021-097 of July 29, 2021 (effective July 31, 2021); Nevada's Directive 047 (effective July 30, 2021 in the counties of substantial or high transmission, twelve on July 30 and sixteen of seventeen by August 24, 2021, Clark and Washoe throughout); Louisiana's Proclamation 137 JBE 2021 (August 2, 2021; effective August 4, 2021; statewide indoor masks regardless of vaccination status; renewed by 167 JBE 2021 on August 31 and 181 JBE 2021 on September 28, 2021); Oregon's OAR 333-019-1025 (August 13, 2021, indoor spaces) and OAR 333-019-1011 (August 20, 2021, health-care settings, naming "dental offices"); New Mexico's order of August 17, 2021 (mask directive effective August 20, 2021); Washington's Secretary of Health Order 20-03.4 (August 19, 2021, effective August 23, 2021); New York's Commissioner's Determination of August 27, 2021 under 10 NYCRR 2.60; Illinois's Executive Order 2021-20 (August 26, 2021; indoor masking from August 30, 2021); Chicago's Phase 5 order (June 11, 2021, health-care settings); Hawaii's statewide face-covering requirement (Twenty-First Proclamation of June 7, 2021 and Emergency Proclamation of August 5, 2021) and Honolulu's Tier 5 order (July 8, 2021). Operative clause: every person in a dental office, provider, staff and patient, was required to be masked except while the patient was under treatment, and the practice was required to enforce it. These rules are occupational-health and airborne-transmission controls: each kept universal face coverings on every person in a health-care setting, regardless of vaccination status, after the general orders ended, and each made the practice's enforcement of the rule a condition of operating. Enforcement: the emergency-powers penalties of each State.209 Status: New Jersey's, Massachusetts's, Connecticut's, Kentucky's, Chicago's and Hawaii's in force July 1 and September 30, 2021 (Kentucky's to September 7, 2021); the rest from their dates through September 30, 2021. Functions: CH, FD, CB, WF, OF.
B-14. The State workplace standards
Issuers and dates: Washington's WAC 296-800-14035 (readopted July 6, August 23 and September 20, 2021) and the Department of Labor and Industries' rules; Cal/OSHA's emergency temporary standards, 8 C.C.R. §§ 3205-3205.4, as readopted June 17, 2021 (exclusion of exposed employees with pay, written prevention program, respirators on request, outbreak testing); Virginia's 16VAC25-220 (permanent standard January 27, 2021; amended September 8, 2021); Nevada OSHA's adoption of the federal Healthcare Standard effective July 1, 2021; Oregon OSHA's Administrative Order 12-2021 (medical removal protection, effective September 16, 2021) and OAR 437-001-0744. Operative clause: written plans, screening, distancing, masking, exclusion with pay, notification, training and recordkeeping in every dental workplace in those States. Enforcement: the States' occupational-safety penalties.210 Status: Washington's, California's, Virginia's and Nevada's in force July 1 and September 30, 2021; Oregon's from September 16, 2021. Functions: OF, WF, ST, CH, SC, HR.
B-15. The Delta-wave orders of the metros
Issuers and dates: Savannah (July 26, 2021, masks in hospitals); St. Louis City (July 26, 2021, indoor masks); New Orleans (July 31, 2021, indoor masks); Jefferson Parish (August 4, 2021, indoor masks); the eight Bay Area health officers (August 3, 2021, indoor masks); Saint Paul (August 3, 2021, City property); Montgomery County, Maryland (August 7, 2021, every indoor location open to the public); Maricopa County Superior Court (August 9, 2021, court facilities); Dallas County (August 11, 2021, health-and-safety policy requiring "universal indoor masking for all employees and visitors" at "all commercial entities in Dallas County providing goods or services directly to the public," $1,000 fine, litigated in the Texas courts through the quarter); Philadelphia (August 12, 2021); Denver's school and child-care mask order (August 17, 2021); Somerville (August 20, 2021); Chicago (August 20, 2021) and suburban Cook County (August 23, 2021); Oakland County schools (August 24, 2021); Boston (August 27, 2021, every indoor business premises); Boulder County (September 3, 2021); Cambridge (September 3, 2021); King County (September 7, 2021, every indoor public setting); Honolulu's Safe Access O'ahu (September 13, 2021) and Safe O'ahu Response Plan (September 22, 2021); the Eighth Judicial District Court of Nevada (July 19, 2021); New York City's Department of Health and Mental Hygiene (July 21, 2021, vaccination or testing of every staff member of the public hospital system and its clinics by August 2, 2021).211 Operative clause: as stated; the indoor-mask orders were airborne-transmission controls imposed on every indoor workplace open to the public regardless of vaccination status; each order bound every business or institution it named within the jurisdiction, dental offices among them where the order reached indoor businesses or health-care settings, and reached the practice's staff and patients where it masked schools, courts and transit. Enforcement: the local health codes' penalties. Status: each in force from its date through September 30, 2021. Functions: CH, FD, CB, WF.
B-16. The paid-leave mandates
Issuers and dates: New York, Chapter 25 of the Laws of 2020 (March 18, 2020, through the quarter); New Jersey, P.L. 2020, c. 9 (March 20, 2020); Colorado, the Healthy Families and Workplaces Act (public-health-emergency leave from January 1, 2021 through the quarter); Massachusetts, Chapter 16 of the Acts of 2021 (June 7, 2021 through September 30, 2021 in its first term). Operative clause: every dental employer in those States was required to pay every employee subject to a quarantine or isolation order, or caring for a child whose school or care an order had closed, not to work. Enforcement: the States' wage-and-hour penalties.212 Status: in force July 1 and September 30, 2021. Functions: WF, OF.
B-17. The licensing and reporting orders
Issuers and dates: Pennsylvania's Act 21 dental and dental-hygienist waivers (through September 30, 2021) and the Secretary of Health's elective-procedures order (to August 23, 2021); California's Department of Consumer Affairs waivers of July 1, July 26 and September 28, 2021; Indiana's control measures under 410 IAC 1 (updated July 19, 2021); Tennessee's Executive Orders No. 82 (July 30, 2021) and No. 83 (August 6, 2021); Massachusetts's Public Health Emergency Orders of August 20 and September 2, 2021; New Mexico's orders of June 30, 2021; Delaware's emergency orders of September 8, 2021 on office-based surgery and free-standing surgical centers (effective September 30, 2021); New Jersey's ambulatory-surgery directives. Operative clause: as stated; each conditioned the licensure, staffing, reporting or facility operations of dental practices or of the surgical facilities in which oral surgeons and pediatric dentists operate. Enforcement: licensing.213 Status: in force on their dates within the quarter. Functions: HR, OF, CB, PR.
B-18. The tribal and territorial orders
Issuers and dates: the Mescalero Apache Tribe's Executive Order 21-05 (August 20, 2021, masks on every employee and contractor of every tribal enterprise regardless of vaccination); Puerto Rico's Administrative Bulletin OE-2021-062 (August 16, 2021, vaccination or weekly testing of every health-sector worker) and OE-2021-064 (August 30, 2021). Operative clause: as stated. Enforcement: tribal and territorial law.214 Status: in force from their dates through September 30, 2021. Functions: HR, WF, OF, CH. The Service's own Notice confirms that "eligible employers include employers in the U.S. Territories."215
B-19. The counterparty orders
Issuers and dates: California's State Public Health Officer Order of July 26, 2021 (vaccination verification of workers in the health-care settings it names, by August 23, 2021); New York's 10 NYCRR 2.61 (August 26, 2021, hospitals and nursing homes, by September 27, 2021); Maryland's order of August 18, 2021 (hospitals and nursing homes); Massachusetts's order of August 4, 2021 (nursing homes); New Jersey's Executive Directives 20-016 and 20-018 (ambulatory surgery centers); Pennsylvania's elective-procedures order (to August 23, 2021); New York City's order of July 21, 2021 (public hospital system); San Diego County's quarantine order (revised July 22, 2021); Illinois's Executive Order 2021-18 (August 4, 2021, school masks, an infection-prevention control on the classroom), Denver's (August 17, 2021) and Oakland County's (August 24, 2021) school orders. Operative clause: each governed the hospitals and surgery centers in which oral surgeons and pediatric dentists treat sedation cases, the quarantine of exposed staff and patients, or the schools of the industry's workforce.216 Enforcement: the emergency-powers, licensing and health-code penalties of each issuing State, county and city, as recited in the exhibits cited. Status: in force from their dates through September 30, 2021. Functions: CB, WF, PR.
(C) The functions in the third quarter of 2021
Chairside care and hygiene (CH) was partially suspended because the Standard's screening, distancing, barrier, mask and precaution provisions, the States' health-care masking rules and the metros' indoor-masking orders, occupational-health and airborne-transmission controls on every person in the operatory, governed every visit. Elective and aerosol-generating procedures (PR) were partially suspended because the Standard's paragraph (g) governed every aerosol-generating procedure on a suspected or confirmed case, its paragraph (d) required every patient to be screened and every suspected case turned away, and the respirator authorizations governed the equipment. Sterilization and infection control (ST) was partially suspended because the Standard's paragraphs (j) and (k) and the State standards fixed cleaning and ventilation duties. Scheduling and front desk (FD) was partially suspended because the screening, entry-control, mask-enforcement and vaccination-verification duties fell on it. PPE and consumables (SC) was partially suspended because the Standard required respirators and the FDA withdrew inventory from lawful use. The laboratory pipeline (LB) was partially suspended because the laboratories' own States' workplace standards and face-covering rules, infection-prevention and exposure-control requirements on the laboratory floor, governed them. Hiring and credentialing (HR) was partially suspended because Washington, Maine, Rhode Island, Illinois, Philadelphia, Los Angeles County, Pasadena, Denver and Puerto Rico conditioned employment on vaccination or testing and every practice in those jurisdictions was required to verify, document and exclude. Billing and administration (OF) was partially suspended because the Standard's plan, log, reporting, training and medical-removal-benefit provisions, the State standards and the paid-leave laws fell on it. Workforce availability (WF) was partially suspended because the Standard's paragraph (l) and the State standards removed exposed and symptomatic employees from the workplace, the quarantine orders confined them, the school orders governed their children and the conveyance order governed their commute. Patients and payers (CB) was partially suspended because every patient was screened, masked and, in the metros, subject to the Delta-wave orders, and because the hospitals and surgery centers were under their own orders. The function-by-function section states each function in full.
(D) The continuing suspension
The clause asks whether the operation "is fully or partially suspended during the calendar quarter due to orders"; "during the calendar quarter" modifies "suspended," and Congress did not write "due to orders in effect during the calendar quarter."217 A suspension is, on the United States' own agreed definition, "[t]he act of temporarily delaying, interrupting, or terminating something"; Tri-State Memorial Hospital v. United States, No. 2:25-cv-0181-TOR, ECF No. 38 (E.D. Wash. May 28, 2026) ("Tri-State") holds that a suspension includes a "delay" and that "due to" is but-for causation; and the Notice's own Q&A-22 makes an employer suspended during part of a quarter eligible for the whole of it, while Q&A-16 treats the period an employer needs to move between modes of operation as part of the suspension.218 Continuing suspension reaches this quarter by four pathways, each grounded in text and each independently sufficient: (1) the instruments in force on every day of the quarter, stated in subpart (B) and stated as orders; (2) the instruments issued inside the quarter, from Los Angeles County's universal indoor-masking order of July 17, an airborne-transmission control on every indoor workplace, to Washington's Proclamation 21-14 of August 9 and Illinois's Executive Order 2021-20 of August 26, 2021; (3) the counterparty orders on the hospitals, surgery centers, schools, transit systems and laboratories on which the operation depends (B-3, B-5, B-19); and (4) the restoration period that the orders' own step dates compelled.
The arithmetic from the orders' own step dates
The step dates are the orders'. Texas's rule 108.7 bound every dental office from May 1, 2020 and expired on June 18, 2021, twelve days before the quarter began (Ex. TX-056); New York's Interim Guidance for Dentistry, made mandatory by the Executive Order 202 series, governed every practice from June 1, 2020 to June 25, 2021, five days before it (Ex. NY-111; Ex. NY-090); Iowa's paragraph A prohibited every procedure not performed in compliance with the Board's Guidelines from May 8, 2020 to 11:59 p.m. on June 26, 2021, four days before it (Ex. IA-038); Oregon's Executive Order 20-22 and Washington's phased framework ran to June 30, 2021, the day before it (Ex. OR-043; Ex. WA-065; Ex. WA-072); Minnesota's peacetime emergency ended on July 1, 2021, the day it began (Ex. SEC-03-020); and Pennsylvania's elective-procedures order ran to August 23, 2021, inside it (Ex. PA-025; Ex. PA-101).219 A general practice runs on a six-month hygiene recall; the emergency-only orders of the spring of 2020 removed a third of a recall cycle, the reopening conditions cut the number of visits a column could hold on every day they ran, and a practice released from its last binding condition on June 18, June 25, June 26 or June 30, 2021 was, on July 1, 2021, rebuilding a schedule, a staff and an inventory that the orders had compelled it to dismantle. The staff arithmetic is the Bureau's: the industry employed 954,616 persons in March 2020 and 445,086 in April; it did not regain 980,000 until April 2021 and did not exceed its February 2020 employment in any month until May 2021.220 The interconnected-economy section states the analogy and the point in full; the orders' own step dates fix the arithmetic.
What was in force when the general restrictions ended
When the last statewide dental conditions lapsed between June 18 and July 1, 2021, the instruments in subpart (B) were in force or took force: the Standard from June 21, 2021; the National Emphasis Program; the conveyance order; the respirator authorizations as narrowed; the State workplace standards; the health-care masking rules, airborne-transmission controls, of New Jersey, Massachusetts, Connecticut, Kentucky and Hawaii and of Chicago, joined by those of California, Nevada, the District of Columbia, Louisiana, Oregon, New Mexico, Washington, New York and Illinois; the paid-leave mandates; the vaccination orders from August 2, 2021; the Delta-wave orders of the metros from July 17, 2021; the licensing and reporting regimes; and the counterparty orders. They are not the residue of a suspension; they are orders limiting commerce, travel and group meetings in force during the calendar quarter, and the finding in subpart (F) rests on them and on the four pathways stated above.221
(E) The Service's position on this quarter
The Service's Letter 105C position, that no order "could have fully or partially suspended" a dental practice in the third quarter of 2021, rests on a premise the Service's own Chief Counsel did not adopt. AM 2023-007 concludes that OSHA's "communications" were not orders and excludes the Standard from that conclusion in its first footnote.222 The FAQ page and AM 2023-007 administer the ten-percent rule as a definition; the United States told the District of Arizona and the Eastern District of Washington that it is a "safe harbor," and the Eastern District of Washington held that the Notice's tests supply "a method for the test to be met not as a requirement to meet the test."223 The court held that the words "fully or partially suspended" are "plain," that a partial suspension "is a temporary delay, interruption, or termination of a portion an employer's business," and that the statute does not require the suspension to be "significant."224 Under that reading, the Standard's screening-or-comply mandate, the vaccination orders' verification-and-exclusion mandates and the enforcement duties of the masking rules, the occupational-health and airborne-transmission controls of B-13, each interrupted a portion of the operation of every practice they reached. The Service is free to weigh those interruptions. Its letter does not weigh them. It says they did not exist.
The Service's ground that "the orders had lifted" and that "any effect was a lingering effect" does not describe this quarter. The nineteen classes of instrument in subpart (B) were in force between July 1 and September 30, 2021, four of them federal and in force on every day; the statewide dental conditions that lapsed did so on June 18, June 25, June 26, June 30 and July 1, 2021 and on August 23, 2021, dates stated in subpart (D) from the orders' own terms; and the clause reads "suspended during the calendar quarter," not "orders in effect during the calendar quarter." The position confuses the expiry of an order with the end of the suspension it caused, and it does not describe the instruments stated here, which had not expired. The Service's positions are answered in full below.225
The Service's ground that masks are a modification of nominal effect misdescribes the instruments. The Standard's paragraphs (d) through (l), the vaccination orders and the respirator authorizations are not mask rules; the health-care masking rules of subpart B-13 are occupational-health and airborne-transmission controls that arrived as one condition among several (screening at the door, exclusion of suspected cases, and, under the Standard, distancing, barriers, cleaning and ventilation) on the same operatory; and in the profession whose every procedure generates aerosol a rule that masks every person in the room except the patient under treatment is a rule about the delivery of every procedure. The United States told the District Court in Stenson Tamaddon, LLC v. IRS, No. 2:24-cv-01123-SPL (D. Ariz.), in its opposition and cross-motion for summary judgment of January 6, 2025, ECF No. 44 ("Doc. 44"), that "employees having to wear face masks may impact business operations" and that mask and operational-hours orders "would also be considered," and Tri-State held that "the required protocols and procedures to comply with the Proclamation" were suspensions the order caused.226
The Service's ground that the instruments are guidance rather than orders fails on their enforcement clauses. Each instrument in subpart (B) is stated with its enforcement clause: the OSH Act's penalties; RCW 43.06.220(5), a gross misdemeanor; licensing discipline under Maine's and Rhode Island's rules; 20 ILCS 3305/19; Cal. Health & Safety Code § 120295, a misdemeanor; the Philadelphia Code; D.R.M.C. § 24-16; the emergency-powers penalties of each State; the wage-and-hour penalties of the paid-leave States. The guidance documents of the period are described on this page as guidance and ground no finding.227
The Service's ground that the employer was not the addressee fails on the instruments' own definitions. Proclamation 21-14 defined "Health Care Setting" to include "Dental and dental specialty facilities"; Maine's chapter 264 named "Dental Health Practices"; Executive Order 2021-20 defined "Health Care Facility" to include "dental offices"; the Philadelphia regulation bound every institution providing "dental" services; the Los Angeles County order named "dental" practices among the "Clinics & Doctor Offices" of paragraph a(x) and the "dental office" among the health care facilities it recites; Denver's order defined "Clinical settings" to include "dentist offices"; Rhode Island's regulation named the "dentist." The remaining instruments reached the practice through its patients, its staff, its suppliers and its counterparties, and the United States has represented that "a business may be suspended 'due to' a government order addressing a third party."228
(F) The finding
The operation of dental and orthodontic practices was partially suspended during the third quarter of 2021 due to orders from an appropriate governmental authority limiting commerce, travel and group meetings due to COVID-19, within the meaning of I.R.C. § 3134(c)(2)(A)(ii)(I): in every State and territory, by the Standard, the revised National Emphasis Program, the conveyance order and the respirator authorizations; in Washington, Maine, Rhode Island and Illinois and in Philadelphia, Los Angeles County, Pasadena, Denver and Puerto Rico, by the health-care vaccination orders, eight of which named dental facilities, offices, practices or practitioners in terms and the ninth of which reached the health sector; in New Jersey, Massachusetts, Connecticut, Kentucky, Hawaii, California, Nevada, the District of Columbia, Louisiana, Oregon, New Mexico, Washington, New York and Illinois and in Chicago, by the health-care masking rules, occupational-health and airborne-transmission controls; in Washington, California, Virginia, Nevada and Oregon, by the State workplace standards; in the metros named in B-15, by the Delta-wave orders; and everywhere, by the counterparty orders on the hospitals, surgery centers, schools and transit on which the operation depends. The tables on this page tabulate the instruments and their dates.
What this analysis does not claim was in force
This analysis does not claim that any emergency-only dental order of the spring of 2020 was in force in the third quarter of 2021; every one of them had expired or been replaced by June 8, 2020. It does not claim that Texas's rule 108.7 was in force after June 18, 2021, that FEMA's allocation rule was in force after June 30, 2021, that MIOSHA's emergency rules were in force after June 22, 2021, that Pennsylvania's universal masking order, an exposure-control requirement on every indoor space, was in force after June 28, 2021, that Iowa's proclamation was in force after June 26, 2021, that Minnesota's Executive Order 20-51 was in force after May 27, 2021, that Louisiana's dental regime was in force after May 24, 2021, that New York's Interim Guidance for Dentistry was in force after June 25, 2021, that Oregon's Executive Order 20-22 was in force after June 30, 2021, or that Arizona's, Ohio's or Colorado's procedure orders were in force after April 2021. It does not treat California's State Public Health Officer Orders of July 26 and August 5, 2021 or New Jersey's Executive Order 252 as reaching private dental offices, because their covered-settings lists do not name them; it treats them as orders on the hospital and facility counterparties. It does not treat New Orleans's entry-requirement order of August 16, 2021 as reaching dental offices, because the order does not list them. It does not rely on OSHA's vaccination-or-testing emergency temporary standard of November 5, 2021, which post-dates the period. It does not treat the CDC's, ADA's or OSHA's guidance documents as orders; it treats them as the standards the orders incorporated. The Suspension Clause is satisfied by the instruments that were in force. This analysis names them and no others.
The quarter the Service's letters most often dispute. The record shows these instruments in force on this industry's functions between July 1 and September 30, 2021; an order in force on any day of the quarter is an order in force during it, and the State, metropolitan and federal layers on the quarter page add to the list.