Home Care, Nursing and Senior Living

For an employer in this industry the sentence is false in every one of the six quarters, and it is false in every State.²¹⁹ In the second quarter of 2020 the following were in force on every day in every State: the visitation, communal-dining and screening directive of March 13, 2020 to every certified nursing home; the home health and hospice infection-control directives of March 9 and 10, 2020; the section 1135 blanket waivers retroactive to March 1, 2020; the interim final rule of April 6, 2020; the transfer and cohorting directive of April 13, 2020; the notification and reporting condition of May 8, 2020; and, in forty-two States and territories, a mandatory stay-at-home order covering 2,355 of the nation's 3,233 counties.²²⁰ In the third quarter of 2020 the testing condition of participation at 42 C.F.R. § 483.80(h) and its schedule, the conditional visitation rule of September 17, 2020, and the State universal-testing orders of New York, New Jersey, Pennsylvania, Ohio, Connecticut, Florida and others were in force.²²¹ In the fourth quarter of 2020 and the first quarter of 2021 the same federal conditions were in force, joined by the winter re-tightening orders of the States, the staff-testing orders of West Virginia and Kansas, and, from February 1, 2021, the federal conveyance order.²²² In the second quarter of 2021 the conditional visitation rule as revised April 27, 2021, the testing condition, the vaccine education and reporting condition effective May 21, 2021, and, from June 21, 2021, the OSHA Healthcare Emergency Temporary Standard were in force.²²³ In the third quarter of 2021 the standard was in force on every day of the quarter in every State, the testing condition was revised inside the quarter on September 10, 2021, the conveyance order was in force on every day, and the health-care-worker mandates of California, Colorado, Connecticut, Delaware, the District of Columbia, Illinois, Maine, Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania (Philadelphia), Rhode Island and Washington issued between July 26 and September 28, 2021.²²⁴ The sentence is not a contestable characterization of a mixed record. It is factually incorrect.

The essential designation is the reason the orders imposed conditions on this industry rather than closing it, and it exempted no facility or agency from a single one of them. Q&A-11's own first sentence excludes only an employer whose order "allows all of the employer's operations to remain open," and Q&A-17's Example 4 finds a hospital, designated essential in every State, partially suspended by an order treating its elective procedures as non-essential.²²⁵ The United States has represented that whether a business is essential is determined "by looking to the governmental order affecting [the employer's] operations," and Tri-State found an essential hospital partially suspended by a proclamation carrying "over 30 separate requirements."²²⁶ Every nursing home in the United States was essential and every nursing home in the United States was ordered to bar its visitors, cancel its dining, screen its doors and test its staff. Every home health agency was essential and every home health agency in New Jersey, New York, California, Massachusetts, Maine, Delaware, Philadelphia, Los Angeles County and Denver was placed under a vaccination or testing mandate naming it in terms, and Washington's Proclamation 21-14 covered every residential long-term care setting and drew its line at the door of the home only by naming home care, home health and hospice care to exclude them.²²⁷ "Remained open" describes a building with a locked front door, a screener at the loading dock, an empty dining room and a testing station in the lobby. That is a partial suspension by the Notice's own definition of a workplace open "for other limited purposes."²²⁸

The Notice's own list of "orders, proclamations, or decrees" that qualify begins with "[a]n order from the city's mayor stating that all non-essential businesses must close" and includes "[a] State's emergency proclamation that residents must shelter in place for a specified period" and "[a]n order from a local official imposing a curfew on residents that impacts the operating hours of a trade or business."²²⁹ Those are orders to the public. The United States has represented to the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party."²³⁰ The stay-at-home orders confined the industry's patients to their homes and their households to a shrinking circle of permitted visitors, confined the industry's aides except for their own essential work, closed the schools and child care on which the aides depended, and in many States carried express provisions on long-term care: California's order of March 19, 2020 incorporated the State Public Health Officer's direction on the critical infrastructure workforce; Iowa's proclamation of March 26, 2020 suspended nonessential medical and dental procedures; Alabama's State Health Officer order of March 19, 2020 addressed hospital and nursing home visitation in the same instrument that closed gatherings; and Colorado's Public Health Order 20-20 of March 12, 2020, amended eight times through September 27, 2021, regulated skilled nursing, assisted living and intermediate care facilities throughout the period.²³¹ The exception for orders to the public on which this ground rests is the tail of the very sentence in Doc. 44 in which the United States acknowledged that orders "directed at business operations (operational hours, space, etc.) would also be considered," and it follows the sentence acknowledging that "employees having to wear face masks may impact business operations"; it has no source in the statute; and the Q&A-13 exclusion from which it derives was confined by the Service's own April 29, 2020 FAQ to an employer designated essential and "not required to close its physical locations or otherwise suspend its operations" claiming a suspension "for the sole reason" of the customers' order.²³² No employer in this industry is in that position.

The word "comparable" and the word "telework" appear nowhere in the Suspension Clause. Q&A-16's third factor states that "[i]f the employer's physical work space is so critical to its trade or business operations that tasks central to the trade or business's operations are unable to be performed remotely, then this factor alone indicates that the employer is not able to continue comparable operations."²³³ An aide cannot bathe a patient by telephone; a nurse cannot change a dressing, draw blood or administer an injection over video; a resident cannot be fed, turned or toileted remotely; a family cannot visit a dying parent through a window and call it comparable; a hospice chaplain barred from a nursing home cannot sit with a patient. Q&A-15's Example 2 finds a physical-therapy practice partially suspended because "employees cannot access specific equipment or tools" and because not every patient of the practice can be served remotely.²³⁴ Where remote work was possible in this industry, it was possible because an order permitted it and compelled it: the section 1135 waivers permitting remote initial assessments and remote aide supervision, the interim final rule permitting services "via a telecommunications system, as long as such services do not: (1) Substitute for in-person home health services ordered as part of a plan of care certified by a physician; and (2) are not considered a home health visit for purposes of eligibility or payment," the Appendix K amendments permitting remote level-of-care evaluations, and the hospice face-to-face encounter by telehealth were changes in the manner of operation compelled by the stay-at-home orders and permitted by the waivers, and each is a compelled modification under Q&A-17, not a continuation of comparable operations.²³⁵ The transition sentence of Q&A-16, which expects "some adjustment period" and treats "a significant delay (for example, beyond 2 weeks)" in moving to comparable telework as itself "a partial suspension during that transition period," has no application to a change the orders compelled for more than fourteen months.

Q&A-13 reaches, by its own text, an employer that "suspends some or all of its operations because its customers are subject to a government order requiring them to stay at home," and its own example an employer that "is an essential business and is not required to close its locations or suspend its operations"; the Service's FAQ 32 of April 29, 2020 confined the exclusion in terms to "[a]n employer that operates an essential business that is not required to close its physical locations or otherwise suspend its operations" claiming a suspension "for the sole reason" of the customers' order.²³⁶ The orders on this industry were addressed to the employer itself. "The facility must test residents and facility staff."²³⁷ "This section applies to all settings where any employee provides healthcare services or healthcare support services."²³⁸ "Covered health care and high-risk congregate settings ... must maintain a policy that requires covered workers to either provide adequate proof that they have been fully vaccinated or submit to COVID-19 testing at minimum one to two times weekly."²³⁹ "Covered entities shall continuously require personnel to be fully vaccinated against COVID-19."²⁴⁰ Facilities were to restrict "visitation of all visitors and non-essential health care personnel" and to "[c]ancel communal dining and all group activities," on pain of citation through the survey process at F563 and F880.²⁴¹ Each of those is an order on the employer. Where the orders also confined the industry's patients and families, that confinement is a suspension "due to" an order under Q&A-10, Q&A-12 and the United States' own account of third-party orders, and Q&A-13 by its terms does not reach it.²⁴² The ground presupposes an employer the orders never named. There is no such employer in this industry; every one of them was named, by condition of participation, by occupational standard and by health officer order.

Q&A-14 reaches only an employer that "voluntarily suspends operation of a trade or business or voluntarily reduces hours due to COVID-19" where, in the question's own words, "the suspension or reduction in hours is not due to a governmental order"; where an order restricts, the suspension is not voluntary by definition.²⁴³ Tri-State held that the hospital's protocols "were not voluntary" because "the Proclamation required" them, and that the United States' contrary account would leave "not many businesses or any business that would be eligible under the ERC at all."²⁴⁴ CMS enforced the March 13, 2020 visitation and dining directions through the State survey agencies under 42 C.F.R. § 483.10(f)(4) and § 483.80 and directed surveyors to investigate noncompliance at F563 and F880; the testing condition carries its own tag, F886; the OSHA standard carries the penalties of section 17 of the Occupational Safety and Health Act; New Jersey's Executive Order 252 carries the penalties of N.J.S.A. App. A:9-49 and 9-50; Connecticut's Executive Order 13B carries the civil penalty of section 19a-525 of the General Statutes; Philadelphia's regulation makes inspection "a condition of operation."²⁴⁵ Where a federal memorandum recommended and the State ordered, as with the reopening phases of QSO-20-30-NH that New Jersey, Pennsylvania, Florida, West Virginia, Louisiana, Maryland and others adopted by executive directive, the State order is the command and this analysis cites it.²⁴⁶ Nothing in this industry's compliance was voluntary.

Q&A-14 reaches, by its own terms, only a suspension "not due to a governmental order" (Q&A-14, at 929), and the United States and the District Court have defined the excluded employer as one "not being ordered to do so" and as one that "could nonetheless, with telework, 'continue operations comparable to its operations prior to the closure' but chooses not to."²⁴⁷ No employer in this industry answered that description in any quarter. The standing statutes commanded the conduct independently of the emergency orders and punished disobedience: in Texas, "Each person shall act responsibly to prevent and control communicable disease" and "Each employer shall" maintain "a place of employment that is reasonably safe and healthful"; in every State, "Each employer ... shall furnish to each of his employees employment and a place of employment which are free from recognized hazards," enforced by citation from September 2020; and on every certified nursing facility since 2016, "The facility must establish and maintain an infection prevention and control program" (the standing duties).²⁴⁸ The legislatures then fixed the standard of care as compliance with governmental standards, guidance and protocols, Texas for every action commenced on or after March 13, 2020 and Arizona retroactively to March 10, 2020.²⁴⁹ Those statutes had no COVID-19 content until the health authorities supplied it; the measures were taken because those directives defined the duty and would not have been taken without them. "Due to" is but-for causation, and the causation here runs from the command to the measure without an intervening choice; an owner's later description of compliance as a choice is not an element of the statutory test and not evidence of the counterfactual.²⁵⁰ The Notice's own words confirm the result: a modification "required by a governmental order as a condition of reopening" is a partial suspension due to the order (Q&A-18, at 930). A statute that commands conduct is an order from an appropriate governmental authority, and the source of the command is irrelevant (see the statute). The Service's premise under Q&A-14 is the absence of a command. It fails wherever a command reached the employer, and in this industry a command reached every employer on every day of the six quarters.

The ten percent figure is, on the United States' representations to two federal courts, a safe harbor and not a floor:

"Effectively, this is a safe harbor ... Properly understood, it isn't an eligibility requirement"; "the IRS did not say that a taxpayer cannot qualify for the ERC if they have been impacted less than 10 percent"; the figure "exists only as a safe harbor"; and the provision states "sufficient--though not necessary--conditions" and is "a quintessential safe harbor."

Doc. 44 at 14, 28, 30; Br. for Appellees at 37-38, 49

The District Court agreed and Tri-State held that the Notice "provides a method for the test to be met not as a requirement to meet the test."²⁵¹ A letter that applies the figure as a floor applies a rule the United States has told the courts does not exist, and this analysis holds the United States to its account. The showing here does not depend on the figure. The visitation function of every nursing home in the country was terminated for six months and then restored on conditions; the communal dining and activities function was terminated and then restored by phase; the admissions function of every facility in New York was conditioned for more than a year on a negative test from the discharging hospital; every aide, nurse, contractor and volunteer in every certified nursing facility was excluded from the building until tested on a federal schedule and, if symptomatic and refusing the test, "prohibited from entering the building until the return to work criteria are met"; the hospice function inside nursing homes and assisted living was cut off for months by the visitation bans; and in the third quarter of 2021 every workplace in the industry was placed under a written-plan, screening, distancing, barrier, ventilation, logging and paid-medical-removal regime, and the workforce of fifteen jurisdictions under vaccination or testing mandates.²⁵² The Notice's own examples treat the termination of a category of service, not a percentage, as the partial suspension;²⁵³ the figure is the United States' safe harbor, the showing for this industry exceeds it many times over on the orders' own terms, and a letter that applies it as a floor applies a rule the United States has told two federal courts does not exist.

Q&A-18's first paragraph lists among the compelled modifications that constitute a partial suspension "requiring employees and customers to wear face coverings," "changing the format of service" and "requiring services to be performed only on an appointment basis"; its last sentence, added on March 1, 2021, states that mask, glove and one-way-aisle rules "will not result in more than a nominal effect."²⁵⁴ The United States has told the District Court the opposite of the letters' premise:

employees having to wear face masks may impact business operations

Doc. 44 at 30

Chief Counsel's memorandum of October 18, 2023 excluded from its conclusion the OSHA Healthcare Emergency Temporary Standard and acknowledged that an employer "may be eligible" where a Governor's order made protocols mandatory.²⁵⁵ The modifications imposed on this industry were not masks and gloves. They were the exclusion of every visitor from every nursing home for six months; the cancellation of communal dining and every group activity; the testing of every resident and every staff member, contractor and volunteer monthly, weekly or twice weekly by county positivity, with exclusion from the building on a positive result; the fourteen-day quarantine of every new admission and the dedicated units, cohorting and separate staffing that the county orders required; the negative-test condition on hospital discharge; the screening of every person at every entry to a facility and at the threshold of every home; the written plan, six-foot spacing, barriers, ventilation, logs and paid medical removal of the OSHA standard; and vaccination or weekly testing of every worker as a condition of employment in fifteen jurisdictions.²⁵⁶ Each is a change in the manner of operation compelled by an order, and each is more than a mask.

A bare declaration of emergency, unaccompanied by operative commands, is the legal predicate of the orders issued under it, and this analysis cites it as that predicate; where a declaration itself carries operative provisions limiting commerce, travel or group meetings, it is an order and is cited as one. Q&A-10 says as much, and the orders issued under a declaration are, on Q&A-10's own list, governmental orders.²⁵⁷ The declarations here were the legal predicate of the operative commands and are cited for that reason: the public health emergency determination of January 31, 2020 and the national emergency of March 13, 2020 authorized the section 1135 waivers, retroactive to March 1, 2020, and the interim final rules that amended the conditions of participation; each State's declaration authorized the health officer orders, the testing orders and the visitation orders that followed under it; and many declarations themselves carried operative provisions, as Iowa's proclamation of March 26, 2020 carried the suspension of nonessential procedures and Alabama's proclamation of August 13, 2021 carried the health-care staffing and facility provisions of the Delta wave.²⁵⁸ The commands are the orders; the declarations are why they were lawful.

Q&A-12 asks whether the employer's "suppliers are unable to make deliveries of critical goods or materials due to a governmental order that causes the supplier to suspend its operations," and the United States has represented that the supplier rule "never even mentions a 'physical[ ] clos[ure]' order against the supplier."²⁵⁹ Chief Counsel's memorandum of June 30, 2023 addresses an employer whose supplier suffered "residual delays" after the orders on the supplier had ended; it does not address a supplier under a current order.²⁶⁰ This industry's suppliers were under current orders throughout. Its supplier of referrals, the hospital, was ordered by the Governors and health officers of New York, Texas, Utah, Kentucky, Arkansas, Alaska, Iowa and others to suspend elective procedures in the spring of 2020, and by Pennsylvania again from November 23, 2020 through August 23, 2021; its supplier of admissions was ordered by New York to furnish a negative test before discharge; its supplier of labor was ordered by the school closures of every State to keep children home; its supplier of transportation was ordered by the conveyance order to require a face covering of every passenger, an airborne-transmission control on every vehicle, and by the transit agencies to reduce service; and its suppliers of personal protective equipment operated under the Defense Production Act allocation orders of April 2020.²⁶¹ The supplier ground presupposes a supplier free of orders, and none existed.

This analysis claims no quarter on after-effects alone, and the interconnected-economy section above states the rule it applies: a quarter qualifies when an order in force within it caused a delay, interruption or termination of a portion of the employer's operations within it, and the order's earlier issuance is no objection because the statute asks whether the suspension occurred "during the calendar quarter," not whether the order did. Q&A-22 confirms that an employer whose suspension covers part of a quarter is eligible for the quarter.²⁶² The general orders on the public ended in most States between May and July 2021. The orders on this industry did not. The testing condition of participation was revised inside the third quarter of 2021; the conditional visitation rule of April 27, 2021 governed every nursing home through November 12, 2021; the OSHA standard governed every workplace in the industry from June 21 through December 27, 2021; the State residential-care orders of Michigan, Colorado, Louisiana, North Carolina, West Virginia, Washington, Kansas, Massachusetts, Idaho and Arkansas, and Missouri's case-reporting order, were in force on September 30, 2021; and the vaccination and testing mandates of fifteen jurisdictions issued inside the quarter.²⁶³ The phrase in this ground's heading presupposes a period in which the orders on this industry had ended. No such period occurred before September 30, 2021: the federal conditions never lapsed, and where a general order ended, the industry-specific order that succeeded it is cited here by exhibit number. The ground describes a quarter that did not occur.

The Suspension Clause and the gross-receipts clause are alternatives joined by "or," and Tri-State held that the gross-receipts route is "by Defendant's admission, another method to qualify under for the credit," so that "the fact an employer can be eligible and affected without partial or full suspension is reasonable"; the court found the United States' contrary argument "contradictory."²⁶⁴ An employer paid by Medicare and Medicaid at fixed rates for the visits and days it delivered, and paid retainer payments and Provider Relief Fund distributions to keep its workforce, could sustain receipts while the orders terminated its visitation function, cancelled its dining, delayed its admissions and excluded its untested workers. Receipts that did not decline show only that Congress's other route was not the route taken; they prove nothing about whether the operation was partially suspended, and Congress placed no receipts condition on the Suspension Clause.²⁶⁵

The word the Service uses for its own Notice is the word it here applies to instruments that carried civil money penalties, exclusion from Medicare and criminal sanctions. The conditions of participation at 42 C.F.R. §§ 483.80(g), 483.80(h) and 483.80(d)(3) were added by interim final rule with the force of law, published in the Federal Register, and enforced at F884, F886 and F887 through civil money penalties.²⁶⁶ The Quality, Safety & Oversight memoranda directed the State survey agencies to investigate noncompliance with the visitation and infection-control requirements at the existing tags F563 and F880, and QSO-20-39-NH says so on its face; the March 13, 2020 memorandum's directions were adopted as binding State and local law by executive order or health officer order in Florida, Georgia, North Carolina, New Jersey, Ohio, California, the District of Columbia and Dane County.²⁶⁷ The OSHA standard is a regulation enforced by citation and penalty under 29 U.S.C. § 666.²⁶⁸ The State health department directives were issued under statutes that make violation a crime or a licensure offense, and the Governors' orders under emergency statutes carrying fines and imprisonment.²⁶⁹ Chief Counsel itself defines an order as "a command or mandate delivered by a government official"; every instrument cited in the layers and quarters sections above is one.²⁷⁰ Where an instrument used the language of recommendation, this analysis says so and treats it as guidance, and it grounds no finding on it. An instrument that carries a civil money penalty, a licensure sanction or a criminal fine is an order in every sense the Service's own Chief Counsel has given the word; the label "guidance" belongs to the Notice, not to 42 C.F.R. § 483.80(h).

Agreed, and applied. "A command or mandate delivered by a government official," in Chief Counsel's words; "a command, direction, or instruction," in the dictionaries; "an authoritative direction or instruction; command; mandate."²⁷¹ "The facility must test."²⁷² "The employer must develop and implement a COVID-19 plan."²⁷³ "Covered health care and high-risk congregate settings ... must maintain a policy."²⁷⁴ "Covered entities shall continuously require personnel to be fully vaccinated."²⁷⁵ "All in-home direct care services workers ... must be fully vaccinated."²⁷⁶ "The Facility shall prohibit all visitors, including volunteers and non-essential workers, such as barbers, entertainers, or the like, from entering and accessing its Premises, except for essential visits (e.g., end of life)."²⁷⁷ "All communal dining and activities are to be suspended."²⁷⁸ "Any article 28 general hospital shall not discharge a patient to a nursing home, unless the nursing home operator or administrator has first certified that it is able to properly care for such patient," and no such hospital shall "discharge a patient to a nursing home, without first performing a diagnostic test for COVID-19 and obtaining a negative result."²⁷⁹ Each is an order in the word's ordinary meaning, and each was in force on the days this analysis says it was.

The Service is free to disagree about the weight of these instruments. It is not free to say they did not exist.