The governmental orders by layer
The orders that suspended this industry came from six layers of government at once: the Secretary of Health and Human Services and the Secretary of Labor; the Governors and State health officers; the county and city health officers; the licensing boards, State occupational-safety agencies and courts; the tribal and territorial governments; and the authorities whose orders on hospitals, schools, transit, housing and payers fixed the industry's referrals, workforce and revenue, together with the federal allocation, entry and border instruments through which orders elsewhere reached the industry's supplies and workforce. This section inventories each layer by instrument type. Every exhibit is an order in the ordinary sense, issued by an authority with power over the commerce it limited, and each is cited by exhibit number so that the Service, which says its records show none, can find it.
The governmental response to COVID-19 was not a handful of orders; it was the densest body of governmental commands on commerce, travel and assembly in the nation's history, and every count of it is a floor. By May 31, 2020, according to the Centers for Disease Control and Prevention, 42 States and territories had issued mandatory stay-at-home orders reaching 2,355 of the nation's 3,233 counties, and "most jurisdictions issued multiple orders." The Council of State Governments counted 2,065 executive orders issued by governors and State agencies between February 2020 and June 29, 2020 alone, before four of the six claimable quarters had begun. The Department of Health and Human Services' own dataset records 4,218 State and county policy-order entries between March 23, 2020 and August 31, 2021, thirty-one of them coded to nursing homes and thirty-two to suspended elective medical and dental procedures. The COVID AMP database catalogued more than 20,000 policy measures at the United States national and State level, 95 percent of them issued before November 23, 2021, and approximately 8,000 issued by United States counties.30 The Library indexes the instruments The COVID Project has retrieved and verified. Each of its counts is a count of the instruments indexed, not of the orders that reached any employer or of the orders that existed.
A. The federal layer
The declarations that made the orders lawful
The Secretary of Health and Human Services determined on January 31, 2020 that a public health emergency existed and renewed the determination every ninety days, including on July 19, 2021 for the whole of the third quarter of 2021.31 The President declared a national emergency on March 13, 2020 under the National Emergencies Act and, the same day, an emergency under section 501(b) of the Stafford Act.32 The two declarations together authorized the Secretary's waivers under section 1135 of the Social Security Act, which CMS issued as blanket waivers retroactive to March 1, 2020 and kept in force through the period, and the interim final rules that amended the conditions of participation without notice and comment.33
The section 1135 waivers and Appendix K
The blanket waivers changed the manner in which every segment of the industry operated. For home health agencies they waived the requirement that the initial assessment be performed in the home within forty-eight hours, permitting it by record review; waived the on-site aide supervisory visit every fourteen days, permitting virtual supervision; waived the requirement that a nurse conduct an on-site visit every two weeks to evaluate aide services; and waived the submission timeframes of the Outcome and Assessment Information Set ("OASIS").34 For hospices they waived the volunteer requirement of 42 C.F.R. § 418.78(e), the aide supervision requirement of § 418.76(h), the timeframe for updating the comprehensive assessment, and the requirement of an in-person face-to-face encounter for recertification.35 For nursing facilities they waived the three-day qualifying hospital stay under section 1812(f), the nurse aide training and certification requirement of 42 C.F.R. § 483.35(d) and the four-month limit, the physical-environment rules of § 483.90 so that facilities could use non-resident rooms and non-certified space for cohorting, the roommate-choice and transfer-notice rights of § 483.10(e)(5)-(7) and § 483.15(c)(4)(ii), the pre-admission screening rules of § 483.20(k), and the timeframes for care plans and in-person resident groups.36 CMS ended a set of the nursing home waivers on May 10, 2021, and the remaining waivers continued through the third quarter of 2021 and beyond.37 For Medicaid home- and community-based services every State submitted and obtained approval of Appendix K amendments to its section 1915(c) waivers, permitting remote level-of-care assessments, telephonic monitoring, family caregivers as paid providers, expanded settings and retainer payments to providers whose participants could not receive services; Pennsylvania's Appendix K ran from March 6, 2020 through May 11, 2023.38
The survey memoranda
CMS directed the State survey agencies on March 4, 2020 to suspend non-emergency surveys, and on March 23, 2020 to prioritize focused infection-control surveys and complaint investigations alleging immediate jeopardy; it resumed and enhanced enforcement by memoranda of June 1 and August 17, 2020, the latter imposing civil money penalties keyed to infection-control citations.39 Its provider-facing memoranda are the instruments the industry lived under. QSO-20-16-Hospice (March 9, 2020) and QSO-20-18-HHA (March 10, 2020) directed hospices and home health agencies to screen patients and staff, to identify patients with symptoms or exposure before or upon arrival, and to have symptomatic staff "[i]mmediately stop work, put on a facemask, and self-isolate at home."40 QSO-20-14-NH (March 9, 2020; revised March 13, 2020) directed every nursing home, in the words CMS later used of it, to restrict "visitation of all visitors and non-essential health care personnel, except for certain compassionate care situations," to "[c]ancel communal dining and all group activities" and to "[a]ctively screen residents and staff" (Ex. SEC-04-001; the March 13, 2020 revision as recited in QSO-20-39-NH, Ex. SEC-04-002, and as adopted in terms by Public Health Madison & Dane County on March 15, 2020, Ex. MET-MKE-002).41 QSO-20-23 (March 30, 2020) imposed visitation, screening and group-activity limits on intermediate care facilities for individuals with intellectual disabilities and psychiatric residential treatment facilities.42 QSO-20-25-NH (April 13, 2020) directed the transfer and cohorting of residents by COVID-19 status and the designation of dedicated units and staff.43 QSO-20-29-NH (May 6, 2020) announced the notification and reporting condition adopted by interim final rule two days later.44 QSO-20-30-NH (May 18, 2020) set the three-phase reopening framework the States adopted by order: nursing homes were to "remain at their highest level of vigilance and mitigation (e.g., visitation restricted except in compassionate care situations)" until their community and facility criteria were met, "a single baseline COVID-19 test" of every resident and every staff member, "including individuals providing services under arrangement and volunteers," was a condition of relaxing restrictions, and States were told they "may choose to have a longer waiting period (e.g., 28 days) before relaxing restrictions"; the QSO memorandum expired on March 10, 2021 when the visitation memorandum was revised (Ex. SEC-04-012; Ex. FED-157, both the March 10, 2021 posting).45 QSO-20-38-NH (August 26, 2020) announced the testing condition and fixed the schedule: "Low (<5%) once a month; Medium (5%-10%) once a week; High (>10%) twice a week"; it was revised on September 10, 2021 to key testing to the county community-transmission level and to exempt fully vaccinated staff from routine testing.46 QSO-20-39-NH (September 17, 2020) replaced the blanket visitation restriction with a conditional one: "Outdoor visitation is preferred," and indoor visitation only where the facility had no new onset of cases in fourteen days, was not conducting outbreak testing and was in a county with positivity under ten percent; it was revised on March 10, 2021 to permit indoor visitation "at all times and for all residents" with exceptions, and again on April 27, 2021, and that revision governed through November 12, 2021.47 QSO-21-17-NH (April 8 and May 10, 2021) ended certain waivers; QSO-21-19-NH (May 11, 2021) announced the vaccine education, offering and reporting condition; and the Secretary's release of August 18, 2021 announced the staff-vaccination condition later adopted in November 2021, an instrument this analysis notes as post-period and does not rely on.48
The interim final rules
Four interim final rules amended the conditions of participation and the payment rules with the force of law. CMS-1744-IFC (April 6, 2020) permitted home health agencies to furnish services under the plan of care "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," clarified that a patient whose physician advised confinement because of COVID-19 was homebound, permitted the hospice face-to-face encounter by telehealth, and expanded Medicare telehealth generally.49 CMS-5531-IFC (May 8, 2020) added 42 C.F.R. § 483.80(g), requiring every nursing facility to report to the National Healthcare Safety Network "no less than weekly" and to notify residents, their representatives and families of a confirmed or suspected case "by 5 p.m. the next calendar day," enforced at F884 and F885.50 CMS-3401-IFC (September 2, 2020) added § 483.80(h): "the facility must test residents and facility staff, including individuals providing services under arrangement and volunteers, for COVID-19," at a frequency the Secretary set by county positivity, with a resident who refuses to be tested placed on transmission-based precautions and, "[u]pon the identification of an individual ... with symptoms consistent with COVID-19, or who tests positive for COVID-19," a duty to "take actions to prevent the transmission of COVID-19," which CMS's implementing memorandum fixed to include barring symptomatic staff who refuse testing from the building "until the return to work criteria are met"; the condition was enforced at F886.51 CMS-3414-IFC (May 13, 2021; effective May 21, 2021) added § 483.80(d)(3), requiring the facility to educate every resident and staff member about the vaccine, to offer it, and to document each offer, refusal and administration, and added weekly reporting of vaccination status to the National Healthcare Safety Network, enforced at F887 and F884.52 CMS-9912-IFC (November 6, 2020) conditioned the enhanced federal Medicaid match on State maintenance of coverage and fixed vaccine coverage rules; it is cited as a payer-layer instrument.53
The occupational standard
On January 21, 2021 the President directed the Secretary of Labor to consider whether an emergency temporary standard on COVID-19 was necessary and, if so, to issue it by March 15, 2021.54 On June 21, 2021 OSHA published 29 C.F.R. § 1910.502, effective on publication, with compliance dates of July 6, 2021 for most provisions and July 21, 2021 for the physical-barrier, ventilation and training provisions. "This section applies to all settings where any employee provides healthcare services or healthcare support services," with exceptions for, among others, home healthcare settings only "where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not present."55 The standard required a written COVID-19 plan with a designated safety coordinator and a workplace hazard assessment; screening of every patient, resident, visitor and other non-employee at each point of entry; facemasks indoors and respirators for aerosol-generating procedures and exposure to suspected or confirmed cases; six feet of physical distance indoors where feasible; cleanable or disposable solid barriers at fixed work locations outside direct patient care areas; cleaning and disinfection; ventilation review; health screening of every employee before each shift and removal of employees with symptoms or positive tests, with medical removal protection benefits of up to $1,400 per week for employers of more than ten; a COVID-19 log; and reporting of work-related fatalities and in-patient hospitalizations.56 The preamble identified nursing care facilities, assisted living facilities and home health care services among the covered industries and discussed home healthcare coverage at length.57 The standard was enforced through the agency's inspection directive of June 28, 2021 and its revised national emphasis program of July 7, 2021, and it applied in the twenty-two State-plan States either directly on adoption or through an equivalent State standard; Nevada adopted it effective July 1, 2021 (Ex. AGY-ST-LABOR-WORKPLACE-040) and Oregon adopted medical-removal benefits by administrative order of September 14, 2021 (Ex. AGY-ST-LABOR-WORKPLACE-021), having placed every Oregon workplace under a COVID-19 rule of its own from November 16, 2020 (Ex. SEC-10-054), made permanent May 4, 2021 (Ex. SEC-10-055) and renewed the workplace face-covering rule of that standard, one of its occupational-health controls, on August 13, 2021 (Ex. SEC-10-056); Virginia's standard of its own, adopted July 15, 2020 (Ex. SEC-09-012) and made permanent January 27, 2021 (Ex. SEC-10-043), covered every workplace in the Commonwealth.58 OSHA withdrew the standard's non-recordkeeping provisions on December 27, 2021.59
The conveyance and travel orders
The Centers for Disease Control and Prevention ordered on January 29, 2021, effective February 1, 2021 "until further notice," that persons wear masks on every conveyance and at every transportation hub in the United States, an airborne-transmission control on every mode of public transportation; the Transportation Security Administration ("TSA") enforced it by Security Directive SD 1582/84-21-01 of January 31, 2021, effective February 1, 2021 (Ex. FED-050), by SD 1582/84-21-01A, announced April 30, 2021 and effective May 12 through September 13, 2021 (Ex. FED-051), and by SD 1582/84-21-01B, announced August 20, 2021 and effective September 14, 2021 through January 18, 2022 (Ex. FED-052).60 The order governed every aide who reached a patient by bus, subway or paratransit, every facility van and every ambulance transport on every day of the first three quarters of 2021.
Other federal instruments
The Office for Civil Rights announced enforcement discretion for telehealth communications on March 17, 2020, and the Drug Enforcement Administration permitted telemedicine prescribing of controlled substances, including for hospice patients, for the duration of the public health emergency.61 The Department of Veterans Affairs announced on March 10, 2020 that it had barred visitors from its community living centers and suspended new nursing home admissions, announced on July 26, 2021 its directive mandating vaccination of its health care personnel, and announced on August 12, 2021 the extension of that directive, effective August 13, 2021, to a wider class reaching contractors and volunteers; the announcements are the Department's own account of the directives they implemented and are cited as context, not as orders.62 The Families First Coronavirus Response Act required paid sick leave and expanded family leave of employers with fewer than five hundred employees from April 1 through December 31, 2020, with a health-care-provider exclusion that the Department of Labor narrowed on September 16, 2020 to employees who themselves provide diagnostic, preventive or treatment services, leaving an agency's scheduling, intake, billing and administrative staff within the mandate.63 The Executive Orders of September 9, 2021 on federal contractors and federal employees, and the Safer Federal Workforce Task Force's determination of September 24, 2021, were issued inside the quarter reciting that the national emergency and the public health emergency remained in effect; their obligations ran from October 15, 2021 (contract clauses) and November 22, 2021 (employees), and this analysis cites them as the United States' own September 2021 statement of the emergency, not as third-quarter obligations.64 The Provider Relief Fund's terms and conditions, accepted by every recipient, are cited as the payer context in which the industry operated and not as orders.65
B. The State layer
Visitation bans, March and April 2020
Every State adopted the federal visitation restriction of March 13, 2020 by order, directive or regulation, and most extended it to assisted living, residential care and intermediate care facilities that the federal memorandum did not reach. New Mexico's Public Health Emergency Order of March 13, 2020 (Ex. NM-002) restricted visitation at nursing facilities; Connecticut's Department of Public Health ordered the same day (Ex. CT-059), extended its order on April 21, and rescinded the visitor restrictions on September 25, 2020 (Ex. CT-060); Arkansas's Departments of Health and Human Services issued long-term care guidance on March 13, 2020 (Ex. AR-045) that the Governor's Executive Order 20-13 carried into force (Ex. AR-003); Florida's Division of Emergency Management prohibited visitation to long-term care and similar facilities by Emergency Order 20-006 of March 15, 2020 (Ex. SEC-04-040; Ex. FL-004), extended it on May 18 (Emergency Order 20-007, Ex. SEC-04-062; Ex. FL-028) and July 13, 2020 (Emergency Order 20-008, Ex. SEC-04-072) and replaced it on September 1, 2020 with an order admitting essential caregivers on conditions (Emergency Order 20-009, Ex. SEC-04-041; Ex. FL-044); Michigan's Executive Order 2020-7 of March 14, 2020 restricted entry into health care and residential care facilities, effective immediately, with successor orders carrying the restriction forward (Ex. MI-003); New Jersey's Department of Health issued mandatory visitor and staff guidelines on March 16, 2020 permitting no resident visitors except at end of life (Ex. NJ-063); Washington's Governor restricted visitation at long-term care facilities by Proclamation 20-16 of March 16, 2020 (Ex. WA-012); Alabama's State Health Officer addressed facility visitation in his order of March 19, 2020 (Ex. AL-005); North Carolina's Governor restricted visitors to long-term care facilities by Executive Order 120 of March 23, 2020 (Ex. NC-004) and imposed further facility requirements by Executive Order 130 of April 8, 2020 (Ex. NC-007), extended by Executive Order 211 of May 10, 2021 to August 8, 2021 (Ex. NC-065); Mississippi's Executive Order 1463 of March 24, 2020 barred visitation (Ex. MS-006); Maryland's Department of Health ordered on March 23 (Ex. MD-040) and April 5, 2020 (Ex. MD-042) and the Governor on April 29, 2020, in an order that stood until August 15, 2021 (Ex. MD-043); Colorado's Public Health Order 20-20 of March 12, 2020 (Ex. CO-002) regulated skilled nursing, assisted living and intermediate care facilities and was amended eight times through September 27, 2021 (Ex. CO-042; Ex. CO-092); North Dakota's Executive Order 2020-22 of April 6, 2020 restricted visitation (Ex. ND-020) and was modified on June 5, 2020 (Ex. ND-048) and rescinded March 12, 2021; Arizona's Executive Order 2020-22 of April 7, 2020 restricted long-term care visitation until April 1, 2021 (Ex. AZ-013); Georgia's Executive Order 04.08.20.03 of April 8, 2020 imposed staffing, screening and visitation requirements on nursing homes and long-term care facilities through September 15, 2020 (Ex. GA-013; Ex. SEC-04-060); the District of Columbia's Mayor's Order 2020-063 of April 15, 2020 did the same (Ex. DC-008); New Hampshire's Executive Order 2020-04 of March 13, 2020 barred visitor access to every assisted living, long-term care, nursing and residential care facility from 11:59 p.m. March 15, 2020 (¶ 3) (Ex. NH-001), and Emergency Order #33 of April 17, 2020 activated the Crisis Standards of Care Plan (Ex. NH-044); Ohio's Director of Health limited access to nursing homes and similar facilities from March 13, 2020 by a chain of orders whose Sixth Amended version of January 7, 2021 (Ex. SEC-04-075) and Seventh Amended version of March 22, 2021 (Ex. OH-075) are in the Library; and California's Department of Public Health issued All Facilities Letter 20-22 on March 13, 2020, revised through August 12, 2021 (Ex. SEC-04-068; Ex. AGY-ST-HEALTH-SUBORDERS-086).66
Admission, discharge and cohorting orders
New Jersey's Department of Health directed hospitals and post-acute settings on March 31, 2020 on the expedited receipt of hospital discharges (Ex. NJ-064); New York's Executive Order 202.30 of May 10, 2020 (Ex. SEC-04-049; Ex. NY-021) barred hospital discharge to a nursing home without a negative test and required the facility to certify its ability to care for the patient; New Jersey's Executive Directive 20-026 of August 20, 2020 (Ex. SEC-04-043) placed every long-term care facility in outbreak in Phase 0 with no new admissions and fixed the conditions of admission and readmission by phase, as revised January 6, 2021 (Ex. NJ-074) and in force to January 11, 2022; Massachusetts's Commissioner of Public Health issued a long-term care control order on November 5, 2020 with authority to freeze admissions (Ex. MA-064), reissued June 14, 2021 (Ex. MA-054); Maryland's nursing home orders of April 5 and April 29, 2020 (Ex. MD-042; Ex. MD-043) and their 2021 successors of June 15, August 18 and September 8, 2021 (Ex. MD-056; Ex. MD-059; Ex. MD-061) fixed testing, cohorting, staffing and admission conditions; Delaware's Secretary of Health and Social Services amended the nursing facility and assisted living regulations by emergency orders signed May 26, 2020, effective June 1, 2020, to require testing of residents and staff (Ex. AGY-ST-HEALTH-SUBORDERS-063; Ex. AGY-ST-HEALTH-SUBORDERS-064) and again on June 25, 2021, effective July 1, 2021, to require expanded infection-control programs (Ex. DE-063); and Pennsylvania's Governor ordered the allocation of health care resources on April 8, 2020 (Ex. PA-052) and enhanced protections for health care workers on May 6, 2020 (Ex. PA-055).67
Universal testing orders, 2020
New York's Executive Order 202.30 required every nursing home and adult care facility to test all personnel twice a week from May 2020 (Ex. SEC-04-049); New Jersey's Executive Directive 20-013 of May 12, 2020, revised May 20 (Ex. SEC-04-042; Ex. NJ-066), required a baseline test of every staff member and resident by May 26, 2020 and retesting thereafter, and Executive Directives 20-033 and 20-034 of November 30 and December 2, 2020 (Ex. AGY-ST-HEALTH-SUBORDERS-032; Ex. AGY-ST-HEALTH-SUBORDERS-031) required weekly point-of-care staff testing under a standing order; Ohio's Director ordered testing of the residents and staff of all nursing homes effective May 27, 2020 (Ex. OH-079), and of all residential care facilities by later orders, amended May 4, 2021 to require twice-weekly testing of unvaccinated staff (Ex. OH-049; Ex. OH-071) and in force through July 1, 2022; Connecticut's Executive Order 7UU of June 1, 2020 required weekly testing of nursing home staff (Ex. CT-020); Pennsylvania's Secretary of Health ordered universal testing of the residents and staff of skilled nursing facilities by July 24, 2020 and of personal care homes, assisted living residences and intermediate care facilities by August 31, 2020 (Ex. SEC-04-050); Florida's Agency for Health Care Administration adopted emergency rules on May 8 (Ex. AGY-ST-HEALTH-SUBORDERS-072; Ex. AGY-ST-HEALTH-SUBORDERS-073), June 15 (Ex. AGY-ST-HEALTH-SUBORDERS-074; Ex. AGY-ST-HEALTH-SUBORDERS-075) and August 6, 2020 (Ex. AGY-ST-HEALTH-SUBORDERS-079; Ex. AGY-ST-HEALTH-SUBORDERS-080) and February 2, 2021 (Ex. AGY-ST-HEALTH-SUBORDERS-084; Ex. AGY-ST-HEALTH-SUBORDERS-085) that required assisted living facilities and nursing homes to admit Department of Health testing teams, to test staff every two weeks, and from July 7, 2020 to bar any untested staff member from the building; Maryland's Governor ordered universal testing on April 29, 2020 (Ex. MD-043); Contra Costa County ordered testing at residential facilities on May 29, 2020 (Ex. MET-SFO-036) and required health care facilities to offer testing on September 24, 2020 (Ex. MET-SFO-037); West Virginia's Executive Order 79-20 of November 13, 2020 required twice-weekly testing of all nursing home and assisted living staff (Ex. WV-053), continued by Executive Order 13-21 of April 30, 2021 through the third quarter of 2021 (Ex. WV-064); Kansas's Executive Order 20-69 of December 9, 2020 required adult care home testing (Ex. KS-037), succeeded by the Secretary's order of June 18, 2021 (Ex. KS-052), in force through the period; Michigan's Department of Health and Human Services ordered testing, visitation limits, personal protective equipment, isolation and reporting at residential care facilities on October 6, 2020 (Ex. MI-051) and by successive orders through the order of May 21, 2021 (Ex. MI-072), in force through the third quarter; and Delaware's emergency orders (eff. June 1, 2020) required baseline and ongoing staff testing at nursing facilities and assisted living facilities (Ex. AGY-ST-HEALTH-SUBORDERS-063; Ex. AGY-ST-HEALTH-SUBORDERS-064).68
Phased resumption, summer and autumn 2020
The States translated the federal reopening framework into orders. New Jersey's Executive Directive 20-026 of August 20, 2020 fixed the phases and the conditions of moving between them (Ex. SEC-04-043); Tennessee's Executive Order 49 of June 12, 2020 (Ex. TN-019) and the Department of Health's visitation guidelines of June 15, 2020 (Ex. TN-052) permitted limited visitation on conditions and were carried by later orders to February 2021 (Ex. TN-026; Ex. TN-028); Montana's directives of June 25 and July 13, 2020 (Ex. MT-034; Ex. MT-035) governed senior living and nursing homes until the rescission of the emergency order under which they issued on January 13, 2021 (Ex. MT-019); West Virginia's Executive Order 61-20 of August 12, 2020 (Ex. WV-045) and the reopening plan of August 21, 2020 (Ex. WV-080) governed nursing homes and assisted living residences; Louisiana's State Health Officer ordered nursing home visitation conditions and adult residential care conditions on September 18, 2020, in force through the third quarter of 2021 (Ex. LA-050); Arkansas's revised visitation, screening and staffing directive of October 6, 2020 (Ex. AR-064) was revised again on December 23, 2020 (Ex. AR-068) and remained in force until November 12, 2021; Idaho's guidelines for safe visitation of October 23, 2020 (Ex. ID-049) were revised March 19 (Ex. ID-050) and June 9, 2021 (Ex. ID-051) and administered from May 11, 2021 under the Stage 4 Stay Healthy Guidelines, whose long-term care face-covering rule, an airborne-transmission control on every facility in the State, remained mandatory (Ex. ID-013); New Hampshire's Department of Health and Human Services issued long-term care guidance on July 1 and 10, 2020 (Ex. NH-062; Ex. NH-061), guidance administering the Governor's emergency orders and cited as such; Florida's Emergency Orders 20-009 and 20-011 of September 1 and October 22, 2020 (Ex. SEC-04-041; Ex. FL-049) admitted essential caregivers and general visitors on conditions until rescinded March 22, 2021 (Ex. FL-055); Philadelphia rescinded its long-term care facility order on September 23, 2020 (Ex. SEC-04-048) and Connecticut its visitor restrictions on September 25, 2020 (Ex. CT-060), each leaving the federal conditional rule in place; and Vermont announced the easing of its facility restrictions on June 17, 2020 (Ex. VT-095) under the amended and restated emergency order (Ex. VT-025).69
Winter 2020-2021
The winter surge brought new orders. Michigan's October 6, 2020 residential care order and its successors (Ex. MI-051); New Jersey's revision of Executive Directive 20-026 on January 6, 2021 (Ex. NJ-074) and its point-of-care testing directives (Ex. AGY-ST-HEALTH-SUBORDERS-031; Ex. AGY-ST-HEALTH-SUBORDERS-032); Ohio's Sixth Amended Order of January 7, 2021 limiting access to nursing homes (Ex. SEC-04-075); West Virginia's Executive Order 79-20 of November 13, 2020 (Ex. WV-053); Kansas's Executive Order 20-69 of December 9, 2020 (Ex. KS-037); Arkansas's directive of December 23, 2020 (Ex. AR-068); Idaho's long-term care quarantine guidance of January 27, 2021 (Ex. ID-060); Rhode Island's sector rules of November 9, 2020 (Ex. RI-070); Pennsylvania's order of November 23, 2020 reducing elective procedures, in force to August 23, 2021 (Ex. PA-025); Washington's Proclamation 20-25.8 of November 15, 2020 (Ex. WA-047) and Proclamation 20-66.5 of January 19, 2021 (Ex. WA-057) continuing the Safe Start long-term care rules through the emergency; Maryland's amended health care orders and quarantine order of December 17, 2020 (Ex. MD-050; Ex. MD-023); Kentucky's Executive Order 2020-968 of November 18, 2020 (Ex. KY-033); Tennessee's Executive Orders 68 and 73 of December 4 and 22, 2020 (Ex. TN-026; Ex. TN-028); Michigan's order of January 11, 2021 requiring testing of State nursing home inspectors before entry (Ex. AGY-ST-HEALTH-SUBORDERS-100); and Pennsylvania's order of March 16, 2021 requiring skilled nursing facilities to complete a vaccine needs assessment (Ex. AGY-ST-HEALTH-SUBORDERS-017).70
Residential care orders in force through the third quarter of 2021
When the general orders on the public ended between May and July 2021, the orders on this industry did not. In force on September 30, 2021 were, among others: Michigan's residential care order of May 21, 2021 (Ex. MI-072); Missouri's twenty-four-hour case-reporting order of May 18, 2020 on long-term care, assisted living and residential care facilities, in force for the duration of the emergency (Ex. MO-009); Colorado's Seventh and Eighth Amended Public Health Orders 20-20 of May 31 and September 27, 2021 (Ex. CO-042; Ex. CO-092); Louisiana's State Health Officer order of September 18, 2020 (Ex. LA-050); West Virginia's Executive Order 13-21 continuing twice-weekly testing of nursing home and assisted living staff (Ex. WV-064); Washington's Proclamation 20-66.5 (Ex. WA-057); Kansas's adult care home testing order of June 18, 2021 (Ex. KS-052); Massachusetts's long-term care control order as reissued June 14, 2021 (Ex. MA-064; Ex. MA-054); Idaho's Stage 4 Stay Healthy Guidelines of May 11, 2021, whose long-term care face-covering rule, an airborne-transmission control on every facility in the State, remained mandatory (Ex. ID-013), with the Department's visitation guidelines of June 9, 2021 administered under them (Ex. ID-051); Arkansas's directive of December 23, 2020 (Ex. AR-068); Maryland's nursing home orders of August 18 and September 8, 2021 (Ex. MD-059; Ex. MD-061) and its various health care matters order of June 15, 2021, terminating December 31, 2021 (Ex. MD-055); New Jersey's Executive Directive 20-026 and its visitation directive 21-001 (Ex. SEC-04-043; Ex. NJ-074; Ex. NJ-078), and its adult day directives of June 2021 (Ex. NJ-081; Ex. AGY-ST-HEALTH-SUBORDERS-059; Ex. AGY-ST-HEALTH-SUBORDERS-060), in force to January 11, 2022; Ohio's amended testing orders of May 4, 2021, in force to July 1, 2022 (Ex. OH-049; Ex. OH-071); Connecticut's order of August 11, 2021 requiring weekly testing of unvaccinated nursing home staff (Ex. CT-053); Pennsylvania's order of May 26, 2021 requiring weekly reporting by skilled nursing facilities (Ex. PA-038); Delaware's infection-control orders signed June 17 and 25, 2021 and effective July 1, 2021 for hospitals, nursing facilities and aide-only home health agencies (Ex. DE-062; Ex. DE-063; Ex. DE-061); Indiana's communicable-disease control measures of July 19, 2021 (Ex. IN-092); Alaska's public health emergency order of April 30, 2021 (Ex. AK-030) and its crisis-standards-of-care addendum of September 21, 2021 (Ex. AK-031); Idaho's activation of crisis standards of care on September 7, 2021 (Ex. ID-064); and Hawaii's emergency proclamation of August 5, 2021 (Ex. HI-024) and Executive Order 21-06 of September 1, 2021 on health facilities (Ex. HI-026). North Carolina's Executive Order 130, as extended by Executive Order 211 of May 10, 2021, governed long-term care facilities through August 8, 2021 (Ex. NC-007; Ex. NC-065), and the Secretarial Orders of its Department of Health and Human Services on long-term care visitation and testing continued under that extension inside the quarter (Ex. NC-073). In Utah, the Department of Health's statewide public health emergency declaration of October 14, 2020, the predicate for its later orders (Ex. UT-025), stood beside the Test to Stay statute (Ex. UT-046), S.B. 195 (Ex. UT-041), H.B. 1007 (Ex. UT-045) and the Judicial Council's courthouse face-covering order of July 28, 2021, an airborne-transmission control on every courthouse in which the guardianship and probate matters of this industry's residents were heard (Ex. UT-051).71
Health-care-worker vaccination and testing mandates, July 26 through September 28, 2021
Fifteen jurisdictions issued orders inside the third quarter of 2021 requiring the workers of this industry to be vaccinated or tested as a condition of employment, and the third-quarter treatment below sets them out one by one (B-7 through B-18). In order of issuance: California's State Public Health Officer on July 26, 2021 (Ex. SEC-04-036) (skilled nursing, adult and senior care facilities and hospices to verify vaccination status and test unvaccinated workers weekly or twice weekly from August 9 and August 23, 2021), August 5, 2021 (Ex. SEC-04-035) (skilled nursing, intermediate care, adult day health and hospice facility workers fully vaccinated by September 30, 2021) and September 28, 2021 (Ex. SEC-04-037) (registered home care aides, certified home health aides, in-home supportive services providers and in-home hospice workers fully vaccinated by November 30, 2021); New York's Department of Health on July 30, 2021 (Ex. NY-135) (vaccination of nursing home and adult care facility residents and personnel to be offered and recorded) and August 26, 2021 (Ex. SEC-04-058) (every covered entity, including certified home health agencies, long-term home health care programs, licensed home care services agencies and hospices, to "continuously require personnel to be fully vaccinated," with deadlines of September 27 and October 7, 2021); Massachusetts's Commissioner on August 4, 2021 (Ex. MA-067) (nursing home personnel by October 10, 2021), its Executive Office on August 13, 2021 (Ex. MA-070) (staff at agency facilities) and its Department of Public Health on September 8, 2021 (Ex. MA-069) (home care staff); Oregon's Health Authority on August 5 and 25, 2021 (Ex. OR-046; Ex. OR-051) (health care providers and staff vaccinated or tested, then vaccinated by October 18, 2021); Maryland's Secretary of Health on August 5 (State congregate facilities) (Ex. MD-057), August 18 (hospitals and nursing homes) (Ex. MD-058) and September 8, 2021 (assisted living programs) (Ex. MD-060), requiring their staff to show proof of a first dose by September 1, 2021 or submit to the exposure-control conditions the Secretary attached to unvaccinated status, regular testing and face coverings; New Jersey's Governor on August 6, 2021 (Ex. SEC-04-030) (Executive Order 252: long-term care facilities, pediatric and adult medical day care programs, licensed home health agencies and registered health care service firms to maintain a vaccination-or-testing policy from September 7, 2021); Connecticut's Governor on August 6, 2021 (Ex. SEC-04-031) (Executive Order 13B, long-term care facility workers by September 7) and September 3, 2021 (Ex. SEC-04-051) (Executive Order 13F, extending the requirement to every "long-term care facility" including "assisted living services agency, managed residential community" and to contractors and volunteers, by September 27); Washington's Governor on August 9 and 20, 2021 (Ex. SEC-04-032; Ex. SEC-04-061) (Proclamations 21-14 and 21-14.1: health care providers and long-term care workers vaccinated by October 18, 2021, with an express exclusion for providers of personal care in a person's home) and September 27, 2021 (Ex. WA-087); the District of Columbia's Mayor on August 10, 2021 (Ex. SEC-04-059) (Mayor's Order 2021-099, requiring District Government employees, contractors, interns and grantees to certify vaccination by September 19, 2021) and its Mayor and Department of Health on August 16, 2021, announcing the requirement that every health professional in the District, including personal care aides, have a first dose by September 30, 2021 (Ex. DC-075, the Mayor's and Department's announcement of the requirement, cited as the District's own account of it and not as an order); Philadelphia's Board of Health on August 12, 2021 (Ex. SEC-04-045) (health care institutions, including the employing agencies of home health aides and home and community based attendants, with a vaccination-or-testing regime from August 16 and an employment bar from October 15, 2021); Maine's Department of Health and Human Services on August 12, 2021 (Ex. ME-061) (emergency rule adding COVID-19 to the immunizations required of health care workers, including at home health agencies, effective October 1 and enforced October 29, 2021); Rhode Island's Department of Health on August 17, 2021 (Ex. RI-072) (emergency regulation: all workers in licensed health care facilities vaccinated, with facilities to exclude unvaccinated workers from October 1, 2021); Illinois's Governor on August 26 and September 3, 2021 (Ex. SEC-04-033; Ex. SEC-04-034) (Executive Orders 2021-20 and 2021-22: health care workers, including at hospices and long-term care facilities, to have a first dose by September 19, 2021 or test weekly, with face coverings in health care settings from August 30 as one of the exposure controls the order imposed); Colorado's Board of Health on August 30, 2021 (Ex. CO-055) (emergency rule 6 CCR 1011-1, Chapter 2, Part 12: employees, direct contractors and support staff of licensed health care facilities vaccinated by September 30, 2021); and Delaware's Secretary on September 10, 2021 (Ex. DE-046; Ex. DE-047; Ex. DE-055) (emergency orders amending the regulations of hospitals, aide-only and skilled home health agencies, hospices, personal assistance services agencies and adult day care facilities to require testing of all new staff, vendors and volunteers before their start date and vaccination or testing thereafter, effective September 30, 2021).72 Puerto Rico's Governor required vaccination of the health sector by Executive Order OE-2021-062 of August 5, 2021, effective August 16 (Ex. AGY-TERRITORIES-033); Nevada adopted the federal Healthcare Emergency Temporary Standard effective July 1, 2021 (Ex. AGY-ST-LABOR-WORKPLACE-040); and New Mexico's Public Health Emergency Order of August 17, 2021 imposed an indoor face-covering requirement, an airborne-transmission control on every indoor workplace and public space in the State (Ex. NM-067) and, by a companion order of the same date, required vaccination or weekly testing of hospital and congregate-care workers.73
Health-care exposure-control and face-covering orders of 2021
When the States ended their general mask orders on the public they kept the occupational-health and airborne-transmission controls of health care and congregate settings in force by order: universal face coverings, and, in the instruments that carried them, the companion screening, distancing and visitor-control conditions. Each face-covering rule named below is one control within the workplace infection-prevention and exposure-control regime the issuing authority kept in force. New Jersey's Executive Order 242 of May 24, 2021 (Ex. NJ-050) ended the general indoor mask rule and kept it in health care settings including home health; Massachusetts's Commissioner ordered face coverings in certain settings, including health care and home health, on May 28, 2021 (Ex. MA-050); New York's Department of Health readopted its face-covering regulation on May 26 and June 23, 2021 (Ex. NY-134; Ex. NY-133) and the Commissioner issued determinations on indoor masking under 10 NYCRR 2.60 on August 27, 2021 (Ex. NY-073; Ex. NY-074); Washington's Secretary of Health issued Orders 20-03.3, 20-03.4 and 20-03.5 on June 29, August 19 and September 13, 2021 (Ex. WA-070; Ex. WA-078; Ex. WA-084) requiring face coverings in health care and congregate settings and then indoors generally; Oregon's Health Authority adopted OAR 333-019-1025 on August 11, 2021 (Ex. OR-048); California's Department of Public Health required masks of all persons in health care, long-term care and adult and senior care settings from July 28, 2021 (Ex. AGY-ST-HEALTH-SUBORDERS-110); Colorado's Fourth, Fifth and Sixth Amended Public Health Orders 20-38 of June 30, July 30 and August 31, 2021 (Ex. CO-041; Ex. CO-053; Ex. CO-091) kept masking in health care and congregate care settings on every day of the third quarter of 2021, and the Seventh Amended order of September 30, 2021 carried the same rules into October (Ex. CO-054); Louisiana's Proclamations 137, 167 and 181 JBE 2021 of August 2, August 31 and September 28, 2021 (Ex. LA-036; Ex. LA-038; Ex. LA-040) restored an indoor face-covering mandate on every workplace and public space in the State; Illinois's Executive Order 2021-20 of August 26, 2021 (Ex. IL-042) required masks in health care settings from August 30 and indoors generally; Nevada's Directive 047 of July 27, 2021, effective July 30 (Ex. NV-041), required face coverings of every person, vaccinated or not, in public indoor spaces; the District of Columbia's Mayor's Order 2021-097 of July 29, 2021 (Ex. DC-057); Hawaii's emergency proclamation of August 5, 2021 (Ex. HI-024); New Mexico's orders of August 17 and September 15, 2021 (Ex. NM-067; Ex. NM-070); and Kentucky's Executive Order 2021-585 of August 10, 2021 (Ex. KY-052), terminated by the General Assembly on September 7, 2021 (Ex. KY-056).74
Home care and personal care directives
The instruments addressed to home health, home care and hospice agencies in terms are these: New Jersey's Department of Health memorandum of March 13, 2020 granting temporary operational waivers to home health agencies and hospices because the emergency "significantly affects the ability of a Home Health Agency or Hospice to offer its full array of services" (Ex. SEC-04-063), and its blanket waiver of home health agency licensing standards of April 24, 2020 (Ex. SEC-04-064); CMS's QSO-20-18-HHA (Ex. SEC-04-010) and CMS-1744-IFC (Ex. SEC-04-017); the Appendix K amendments of every State (Ex. SEC-04-078); Illinois's Executive Order 2020-09 of March 19, 2020 on telehealth (Ex. IL-068), whose sections 9 and 10 were reissued monthly through the period; Nebraska's Executive Order 20-12 of March 31, 2020 on relief for health care facilities and telehealth, in force to August 27, 2021 (Ex. NE-050); Delaware's emergency order of June 25, 2021, effective July 1, 2021, requiring every aide-only home health agency to establish an infection-control program (Ex. DE-061), and its orders of September 10, 2021 requiring testing and vaccination-or-testing at aide-only and skilled home health agencies, hospices and personal assistance services agencies (Ex. DE-046; Ex. DE-055; Ex. AGY-ST-HEALTH-SUBORDERS-042; Ex. AGY-ST-HEALTH-SUBORDERS-043; Ex. AGY-ST-HEALTH-SUBORDERS-044; Ex. AGY-ST-HEALTH-SUBORDERS-045); New Jersey's Executive Order 252 ¶ 5 naming "licensed home health agencies and registered health care service firms" (Ex. SEC-04-030); New York's 10 NYCRR § 2.61 naming Article 36 agencies and hospices (Ex. SEC-04-058); Massachusetts's 105 CMR 159.000 of September 8, 2021 for home care staff (Ex. MA-069); California's order of September 28, 2021 for "registered home care aides and certified home health aides," in-home supportive services providers and in-home hospice workers (Ex. SEC-04-037); the Philadelphia Board of Health's Emergency Regulation of August 12, 2021 (Ex. SEC-04-045), as the Department of Public Health's Health Alert of August 25, 2021 construed it ("Does this mandate apply to home health care workers? Yes.") (Ex. SEC-04-046, guidance construing the regulation); Los Angeles County's order of August 12, 2021 "Mandating Employers of Health Care and Home Care Workers" (Ex. MET-LA-023); Denver's orders of August 2 and September 1, 2021 reaching "any entity providing home care to patients" (Ex. MET-DEN-023; Ex. MET-DEN-025); Detroit's emergency order of October 9, 2020 reaching in-home services (Ex. MET-DET-001); and Washington's Proclamation 21-14 (Ex. SEC-04-032), which drew its line at the door of the home by excluding "[p]roviders of personal care in a person's home, such as home care, home health or hospice care" while covering the long-term care workforce in every residential setting.75
Stay-at-home orders and school closures
Forty-two States and territories issued mandatory stay-at-home orders between March 1 and May 31, 2020, covering 2,355 of the nation's 3,233 counties; every State closed its schools by March 25, 2020; the stay-at-home and closure orders of spring 2020 are cited below by a representative set; and the Kaiser Family Foundation's tables record, on each of June 30, 2020, October 1, 2020, January 4, 2021, April 5, 2021, July 2, 2021 and September 21, 2021, how many States kept a stay-at-home order, a gathering limit, a mask requirement and an emergency declaration.76 The orders confined the industry's patients and their households, confined its workforce except for its own essential work, and closed the schools and child care on which the workforce depended; they are cited here by a representative set and in the fifty-State table on this page by State.77
Elective-procedure orders, the orders on the referral supplier
Between March 19 and April 3, 2020 the Governors and health officers of nineteen States, Alaska (Ex. AK-007), Arizona (Ex. AZ-004), Colorado (Ex. CO-007), Oregon (Ex. OR-005), Minnesota (Ex. MN-005), Washington (Ex. WA-015), Texas (Ex. TX-004), Utah (Ex. UT-003), Kentucky (Ex. KY-009), New Mexico (Ex. NM-006), Oklahoma (Ex. OK-006; Ex. OK-011), Virginia (Ex. VA-005), Iowa (Ex. IA-005), Florida (Ex. FL-009), Alabama (Ex. AL-011), Indiana (Ex. IN-011), Maryland (Ex. MD-040), West Virginia (Ex. WV-014) and Arkansas (Ex. AR-040), ordered hospitals and ambulatory providers to postpone elective and non-urgent procedures, and New York's Executive Order 202.10 of March 23, 2020 (Ex. NY-005) did the same; the orders were lifted by phase from late April through June 2020, with Kentucky's directive modified through September 10, 2020 (Ex. KY-015; Ex. KY-029), Minnesota's Executive Order 20-51 governing the resumption to May 27, 2021 (Ex. MN-018), Oregon's Executive Order 20-22 governing to June 30, 2021 (Ex. OR-015; rescinded by Executive Order 21-15, Ex. OR-043), and Pennsylvania ordering a reduction of elective procedures again from November 23, 2020 through August 23, 2021 (Ex. PA-025).78 Each is an order on the supplier of this industry's referrals within the meaning of Q&A-12 of Notice 2021-20 (the "Notice") and of the United States' account of third-party orders.
C. The local layer
The county and city health officers
The forty metropolitan areas in the Library issued their own long-term care and home care orders, often earlier and stricter than the State. Los Angeles County's Health Officer ordered on April 24, 2020 that every licensed congregate health care facility bar visitors, cancel communal dining, screen and mask staff and cohort residents, an order in force through the third quarter of 2021 (Ex. MET-LA-066), added a skilled nursing facility order on October 5, 2020 (Ex. MET-LA-024), and on August 12, 2021 ordered every employer of health care and home care workers, including hospices, home health agencies and home care organizations, to require vaccination by September 30, 2021 (Ex. MET-LA-023).79 Minneapolis closed adult day care centers by Emergency Regulation 2020-3 of March 17, 2020 (Ex. MET-MSP-003) and imposed operational conditions on licensed congregate health care facilities by Emergency Regulation 2020-11 of April 23, 2020 ("All communal dining and activities are to be suspended") (Ex. MET-MSP-008), both rescinded July 24, 2020 (Ex. MET-MSP-012).80 Dallas County ordered long-term care facilities on March 29 (Ex. MET-DFW-009), June 16 (Ex. MET-DFW-020) and August 4, 2020 (Ex. MET-DFW-025), the last in force until March 8, 2022, and its continuing requirements kept the long-term care visitor prohibition through the third quarter of 2021 (Ex. MET-DFW-024).81 Philadelphia's Health Commissioner ordered long-term care facilities on April 8, 2020 (Ex. SEC-04-047), rescinded the order September 23, 2020 (Ex. SEC-04-048), kept the face-covering and exposure-control conditions of its Full Reopening Order in health care and congregate settings through the third quarter of 2021 (Ex. MET-PHL-018), and adopted the health-care-worker vaccination regulation of August 12, 2021 (Ex. SEC-04-045; Ex. MET-PHL-021).82 New York City's Department of Health and Mental Hygiene ordered vaccination or testing of the staff of its public hospitals and clinics by August 2, 2021 (Ex. MET-NYC-035) and, on August 10, 2021, weekly PCR testing of unvaccinated staff and contractors at residential and congregate settings from August 16, 2021 (Ex. MET-NYC-036).83 Chicago's Order 2020-2 series governed hospitals, visitors and every-shift screening through its Fourth Amended version in the third quarter of 2021 (Ex. MET-CHI-002; Ex. MET-CHI-003; Ex. MET-CHI-028).84 St. Louis County's Residential Living Facilities Order of April 2, 2020 continued as a reporting requirement order through May 2021 and beyond (Ex. MET-STL-056; Ex. MET-STL-083), and St. Charles County ordered residential care facilities on April 8, 2020 (Ex. MET-STL-028).85 Denver ordered vaccination of the personnel of care facilities and home care entities on August 2, 2021 (Ex. MET-DEN-023), amended September 1, 2021 (Ex. MET-DEN-025), with full vaccination by September 30, 2021.86 Contra Costa County ordered testing at residential facilities on May 29, 2020 (Ex. MET-SFO-036) and required health care facilities to offer testing on September 24, 2020 (Ex. MET-SFO-037); San Francisco's Safer Return Together order of June 15, 2021 required vaccination in specified health care and congregate settings (Ex. MET-SFO-008) and was updated August 12, 2021 (Ex. MET-SFO-011).87 San Diego County barred non-essential personnel from hospitals and long-term care facilities on March 13, 2020 (Ex. MET-SAN-002), and its quarantine order as revised July 22, 2021 fixed health-care-worker return-to-work rules (Ex. MET-SAN-024).88 San Bernardino County's Health Officer ordered screening, masking, N95 use and single-facility staffing at licensed facilities on April 6 and May 8, 2020 (Ex. MET-RIV-022; Ex. MET-RIV-027), superseded June 15, 2021 by an order in force through the third quarter (Ex. MET-RIV-031); Riverside County barred non-essential personnel from hospitals and long-term care facilities (Ex. MET-RIV-006).89 Bexar County ordered long-term care staff to work at a single facility on April 3, 2020 (Ex. MET-SAT-009) and barred nursing home visitation on July 17, 2020 (Ex. MET-SAT-035).90 Dane County's mass-gathering moratorium of March 15, 2020 exempted long-term care facilities only on condition that they "[r]estrict all visitation except for compassionate care situations," "[c]ancel all group activities and communal dining" and screen residents and staff (Ex. MET-MKE-002), and Public Health Madison & Dane County reimposed indoor face coverings, an airborne-transmission control on every indoor space in the county, by emergency orders effective August 19 and September 10, 2021 (Ex. MET-MKE-023; Ex. MET-MKE-024), while the Milwaukee County Transit System carried the federal conveyance order's airborne-transmission control on every bus through the quarter (Ex. MET-MKE-044).91 Detroit's Emergency Order of October 9, 2020 reached in-home services (Ex. MET-DET-001); Oakland and Wayne Counties ordered face coverings in schools on August 24 and 27, 2021, the exposure-control condition on which the schools of the workforce's children operated (Ex. MET-DET-013; Ex. MET-DET-015).92 Fulton County's Board of Health ordered on March 31, 2020 (Ex. MET-ATL-002); Honolulu's Emergency Orders 2021-09 of July 2, 2021 (effective July 8) and 2021-11 of August 30, 2021 (effective September 13) fixed and amended the Tier 5 framework (Ex. MET-HNL-032; Ex. MET-HNL-035); New Orleans required proof of vaccination or a negative test for indoor settings from August 16, 2021 (Ex. MET-MSY-027; Ex. MET-MSY-029) and vaccination or testing of City personnel and contractors from August 30, 2021 (Ex. MET-MSY-032); Columbus's Executive Order 2021-01 of September 10, 2021 required surgical masks of long-term care workers, an occupational source-control requirement on every shift (Ex. MET-CMH-048); Baltimore's Health Commissioner ordered indoor face coverings on August 10, 2021, an airborne-transmission control on indoor workplaces and public spaces in the city (Ex. MET-BAL-017); King County's Local Health Officer issued isolation and quarantine orders in March and May 2020 that stood through the period (Ex. MET-SEA-004; Ex. MET-SEA-050) and, on September 2, 2021, masking orders placing the same airborne-transmission control on the county's indoor spaces (Ex. MET-SEA-002); Sacramento County ordered indoor face coverings on July 29, 2021, an airborne-transmission control on indoor workplaces and public spaces in the county (Ex. MET-SAC-015); and the Maryland suburbs of Washington issued the county orders collected in the Library (Ex. MET-DCM-001; Ex. MET-DCM-003; Ex. MET-DCM-013; Ex. MET-DCM-021; Ex. MET-DCM-023; Ex. MET-DCM-026).93
D. The agency, board and court layer
Health departments acting by regulation
Delaware's Department of Health and Social Services acted by emergency Secretary's orders amending the licensure regulations of nursing facilities, assisted living facilities, hospitals, aide-only and skilled home health agencies, hospices, personal assistance services agencies and adult day care facilities by orders signed May 26, 2020 (eff. June 1, 2020) (Ex. AGY-ST-HEALTH-SUBORDERS-063; Ex. AGY-ST-HEALTH-SUBORDERS-064; Ex. AGY-ST-HEALTH-SUBORDERS-067), June 17 and 25, 2021, effective July 1, 2021 (Ex. DE-062; Ex. DE-063; Ex. DE-061), and September 10, 2021 (Ex. DE-046; Ex. DE-047; Ex. DE-055; Ex. AGY-ST-HEALTH-SUBORDERS-041 through Ex. AGY-ST-HEALTH-SUBORDERS-046); Florida's Agency for Health Care Administration acted by emergency rules 59AER20-2 through 59AER21-3 (Ex. AGY-ST-HEALTH-SUBORDERS-072 through Ex. AGY-ST-HEALTH-SUBORDERS-085); Pennsylvania's Department of Health acted by orders on personal protective equipment (August 17, 2020) (Ex. AGY-ST-HEALTH-SUBORDERS-014), daily reporting (December 24, 2020) (Ex. AGY-ST-HEALTH-SUBORDERS-069), vaccine needs assessments (March 16, 2021) (Ex. AGY-ST-HEALTH-SUBORDERS-017) and weekly reporting (May 26, 2021) (Ex. PA-038), and by Health Alert Network advisories on infection prevention and work restrictions (April 9, September 16 and September 21, 2021) (Ex. PA-046; Ex. PA-047; Ex. PA-048); New Jersey's Department of Health acted by executive directives on out-of-State certified nurse aides (March 31, 2020) (Ex. AGY-ST-HEALTH-SUBORDERS-058), testing (May 12, November 30 and December 2, 2020) (Ex. SEC-04-042; Ex. AGY-ST-HEALTH-SUBORDERS-032; Ex. AGY-ST-HEALTH-SUBORDERS-031), resumption of services (August 20, 2020) (Ex. SEC-04-043), visitation (March 22, 2021) (Ex. NJ-078), adult medical day care and Programs of All-Inclusive Care for the Elderly ("PACE") (June 14 and 15, 2021) (Ex. AGY-ST-HEALTH-SUBORDERS-059; Ex. AGY-ST-HEALTH-SUBORDERS-060) and by its mandatory visitor guidelines of March 16, 2020 (Ex. AGY-ST-HEALTH-SUBORDERS-062); California's Department of Public Health acted by All Facilities Letters 20-22, 20-52, 20-53, 21-28 and 21-34 (Ex. SEC-04-068; Ex. AGY-ST-HEALTH-SUBORDERS-088; Ex. SEC-04-069; Ex. AGY-ST-HEALTH-SUBORDERS-091; Ex. AGY-ST-HEALTH-SUBORDERS-092); Massachusetts's Department of Public Health acted by orders on pharmacy vaccination of long-term care residents and on facility access to the immunization registry (Ex. AGY-ST-HEALTH-SUBORDERS-116; Ex. AGY-ST-HEALTH-SUBORDERS-119); and Michigan's Department of Health and Human Services acted by emergency orders under MCL 333.2253 on congregate care entry (October 6, 2020) (Ex. AGY-ST-HEALTH-SUBORDERS-106) and surveyor testing (January 11, 2021) (Ex. AGY-ST-HEALTH-SUBORDERS-100).94
Labor agencies, boards and courts
Nevada's and Oregon's occupational safety agencies and Virginia's Safety and Health Codes Board adopted the standards described above (Ex. AGY-ST-LABOR-WORKPLACE-040; Ex. AGY-ST-LABOR-WORKPLACE-021; Ex. SEC-10-054; Ex. SEC-10-055; Ex. SEC-09-012; Ex. SEC-10-043); Florida's Department of Health issued emergency orders for the licensed professions under Executive Order 20-52 (Ex. AGY-ST-HEALTH-BOARDS-001); the Supreme Court of Texas issued forty-three emergency orders on court operations between March 2020 and September 2021 (Ex. ECO-C-069; Ex. TX-041; Ex. TX-040; Ex. ECO-C-071), the Illinois Supreme Court's order M.R. 30370 of April 6, 2021 governed court operations through the period (Ex. IL-067), Maryland's Court of Appeals issued administrative orders on courthouse health measures and judiciary vaccination on August 6 and 20, 2021 (Ex. MD-090; Ex. MD-091; Ex. MD-092), the Utah Judicial Council reinstated a courthouse face-covering mandate on July 28, 2021, an airborne-transmission control on every courthouse in the State (Ex. UT-051), the Wisconsin Supreme Court's order of May 21, 2021 governed circuit and municipal court accommodations (Ex. WI-029), and the courts of Vermont, South Dakota, Arkansas, Clark County and Hamilton County issued the orders collected in the Library (Ex. VT-059; Ex. VT-060; Ex. SD-045; Ex. SD-046; Ex. AR-081; Ex. MET-LAS-019; Ex. MET-CIN-007); each fixed how guardianship, conservatorship and probate matters affecting this industry's residents were heard.95 The Mescalero Apache Tribe kept face-covering orders, airborne-transmission controls on every indoor space on its lands, in force through the third quarter of 2021 (Ex. AGY-TRIBAL-025; Ex. AGY-TRIBAL-040), and Puerto Rico's Governor ordered vaccination of the health and lodging sectors on August 5, 2021 (Ex. AGY-TERRITORIES-033) and of the personal-services sector on August 19, 2021 (Ex. AGY-TERRITORIES-035).96
E. The counterparty layer
Hospitals, schools, transit, housing and payers
The industry's hospitals were under the elective-procedure orders of spring 2020 and Pennsylvania's order of November 2020 through August 2021 (Ex. PA-025), under the discharge conditions of New York and New Jersey (Ex. SEC-04-049; Ex. NJ-064), and under Louisiana's surge-transfer rules of August 2021 (Ex. LA-056) and Washington's proclamation of September 3, 2021 on the transfer and discharge of nursing home residents during the Delta surge (Ex. WA-083); its schools were closed in every State in the spring of 2020 and, in the third quarter of 2021, were under face-covering, vaccination and quarantine orders in New Jersey (Ex. NJ-055; Ex. NJ-057; Ex. NJ-058), Illinois (Ex. IL-042), Oregon (Ex. OR-052), New Mexico (Ex. NM-071), Louisiana (Ex. LA-036), Washington (Ex. WA-075; Ex. WA-079; Ex. WA-078), California, Kentucky (until September 7) (Ex. KY-053; Ex. KY-054), Harris County (Ex. MET-HOU-038), Oakland County and Wayne County (Ex. MET-DET-013; Ex. MET-DET-015), with exclusion lists in South Carolina (Ex. SC-062) and quarantine rules in Florida (Ex. FL-032; Ex. FL-033); its transit was under the federal conveyance order and the TSA directives (Ex. FED-020; Ex. FED-050; Ex. ECO-B-006; Ex. ECO-B-007); its workforce's housing was under the eviction moratoria of New Jersey (Executive Order 106, for the duration of the emergency) (Ex. ECO-C-081), Illinois (Executive Order 2020-30) (Ex. ECO-C-091), Minnesota (Executive Order 20-14) (Ex. ECO-C-096) and California (Assembly Bill 832) (Ex. ECO-C-101); and its payers operated under the interim final rules, the Appendix K amendments (Ex. SEC-04-078), the Families First Coronavirus Response Act's Medicaid maintenance-of-effort condition (Ex. FED-093), and the Provider Relief Fund's terms (Ex. AGY-FED-HEALTH-OTHER-118).97 Each of these instruments is an order on a counterparty of this industry and is cited as such.
F. The ecosystem
The mechanisms
Orders issued far from any facility reached this industry's supplies and workforce through the federal instruments that carried them, and each of those instruments is an order in its own right. The supply of personal protective equipment: the President invoked the Defense Production Act for health and medical resources on March 18, 2020 (Executive Order 13909) (Ex. ECO-A-060), forbade the hoarding of designated scarce materials on March 23, 2020 (Executive Order 13910) (Ex. ECO-A-061), delegated further allocation authority on March 27, 2020 (Executive Order 13911) (Ex. ECO-A-063), and the Federal Emergency Management Agency forbade the export of respirators, masks, gloves and gowns without federal allocation from April 7, 2020 (44 C.F.R. part 328, 85 Fed. Reg. 20195) (Ex. ECO-A-064), with exemptions of April 17, 2020 (85 Fed. Reg. 22021) (Ex. ECO-A-065); those orders governed the market in which every respirator, gown and glove this industry bought in the spring of 2020 was sold. The immigrant direct-care workforce: the presidential proclamations suspended entry from China (Proclamation 9984, January 31, 2020) (Ex. FED-200), Iran (Proclamation 9992, February 29, 2020) (Ex. FED-201), the Schengen area (Proclamation 9993, March 11, 2020) (Ex. FED-202) and the United Kingdom and Ireland (Proclamation 9996, March 14, 2020) (Ex. FED-203), continued and extended them by Proclamation 10143 of January 25, 2021 (Ex. ECO-A-007) and ended them only on November 8, 2021 by Proclamation 10294 (Ex. ECO-A-009); Proclamation 10014 of April 22, 2020 suspended the entry of new immigrants (Ex. AGY-FED-LABOR-IMMIGRATION-007) and Proclamation 10052 of June 22, 2020 suspended the entry of H-1B, H-2B, L and J workers through March 31, 2021 (Ex. AGY-FED-LABOR-IMMIGRATION-008); the aides and nurses this industry recruits from abroad were kept out by those orders on every day they covered. The land borders: the Department of Homeland Security limited travel at every land port of entry with Canada and Mexico to essential travel from March 21, 2020 and renewed the limitation monthly, the notifications of September 22, 2021 carrying it through October 21, 2021 (85 Fed. Reg. 16548 and its successors for Canada; 85 Fed. Reg. 16547 and its successors for Mexico) (Ex. ECO-A-020 through Ex. ECO-A-038; Ex. ECO-A-040 through Ex. ECO-A-058; the notifications of October 21, 2021, Ex. ECO-A-039 and Ex. ECO-A-059, post-date the period and are cited only for the chain's continuation to November 8, 2021), so that the cross-border commuting aides and visiting families of the border-community agencies of Michigan, New York, Washington, Texas, Arizona and California were governed by federal order until November 8, 2021. The foreign governments' orders are the circumstances in which those federal instruments operated, and are cited as such and never as orders of an appropriate governmental authority: Canada's Orders in Council closed its border to non-essential entry from the United States from March 21, 2020 and imposed mandatory isolation on entrants (Ex. FOR-001); Mexico's Consejo de Salubridad General declared a sanitary emergency on March 30, 2020 and its Secretaría de Salud suspended non-essential activities the next day (Ex. FOR-006; Ex. FOR-007); and the European Union restricted non-essential travel into the Union from March 17, 2020 (Ex. FOR-011).98 The conventions, expos, association meetings, job fairs, training rooms and in-facility gatherings on which the industry's selling, staffing and credentialing depended were governed by the gathering, venue and facility orders of the same period; the organizers' own notices of the industry's cancelled, postponed and converted gatherings are collected in the Library's sector records for this industry, each with the venue jurisdiction's orders and the organizer's stated action.
G. The standing duties
Beneath the six layers inventoried above lay a further layer that bound every employer in this industry on every day of the six quarters whether or not any order named it: the standing statutes commanding every person to prevent communicable disease and every employer to furnish a safe workplace, the offenses for disobeying health and emergency orders, the infection-control condition of participation that predated the pandemic, and the liability shields that protected only the complying business. Each is an order from an appropriate governmental authority on the Suspension Clause's own terms: a statute or rule that commands conduct is an order, and a legislature, a health department, a labor department and an occupational-safety agency are each an appropriate governmental authority (see the statute). The pandemic directives gave each its content. This subsection states the layer for seven States, Texas, Pennsylvania, Ohio, California, Arizona, Illinois and North Carolina; the fifty-one-State treatment is at Nothing was voluntary.99
First, the orders let this industry operate only on conditions, and the verbs are commands. Texas: "people shall not visit nursing homes," and "Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy," an offense under Government Code section 418.173 (Exs. TX-003, TX-021, DUT-TX-012). Pennsylvania: in-person operations "provided that the businesses fully comply with all substantive aspects of" the Secretary of Health's safety orders (Exs. PA-010, PA-011). Ohio: businesses and employers "are to take the following actions," including "Comply with all applicable guidance from the U.S. Centers for Disease Control and Prevention and the Ohio Department of Health" (Ex. OH-025 ¶ 12(h)). California: those engaging with reopened sectors "must ... continue at all times to practice physical distancing" (Ex. CA-015 ¶ 3). Arizona: every business that "serves the public or is an employer shall develop, establish and implement policies based on guidance from the CDC ... and ADHS," which "shall be enforced by law enforcement and regulatory agencies" (Exs. AZ-019, AZ-020). Illinois: Essential Businesses and Operations "must take proactive measures to ensure compliance with Social Distancing Requirements" (Ex. IL-005 § 1 ¶ 15(a)). North Carolina: establishments open to the public "must follow" requirements including "Conduct daily symptom screening of workers" (Ex. NC-011). Beside them stood the orders on this industry itself (the State layer; Exs. SEC-04-050, OH-009, OH-062, SEC-04-068, AZ-013, NC-004, NC-007). The measures the Service describes as "beyond the order" were the order's own condition of operating. Texas, Arizona and Illinois converted their employer clauses to recommendations from March 10, March 25 and June 11, 2021 (Exs. TX-029, AZ-037, IL-037); after those dates the compulsion rests on the standing statutes, the shields, the federal layer and the industry's orders, which never lapsed, and Illinois restored the employer command on September 3, 2021: "All employers must ensure that employees wear face coverings in indoor workplaces" (Ex. IL-043).100
Second, standing law commanded the same conduct independently of any emergency order and punished disobedience. Texas states the duty: "The state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease" (Health and Safety Code section 81.002, Ex. DUT-TX-001), with control measures, offenses for disobedience and the command that "Each employer shall" maintain "a place of employment that is reasonably safe and healthful" (Labor Code section 411.103; Exs. DUT-TX-002, DUT-TX-005, DUT-TX-006, DUT-TX-013). The other six States state the same three commands, quoted in the footnote with their DUT- exhibits: an offense for violating a health or emergency order; a duty on the person and the premises to prevent transmission, North Carolina's rule making the CDC's guidelines "the required control measures" (Exs. DUT-OH-007, DUT-NC-001, DUT-NC-007); and a duty on every employer to furnish a safe workplace, given pandemic content by four States' COVID-19 workplace rules (Exs. PA-008, CA-023, DUT-IL-004, DUT-NC-009). Federal law added: "Each employer ... shall furnish ... a place of employment which are free from recognized hazards" (29 U.S.C. § 654(a)(1), Ex. DUT-FED-001), enforced against SARS-CoV-2 from September 10, 2020 (Exs. LAW-487, DUT-FED-073), and, of every certified nursing facility since 2016, "The facility must establish and maintain an infection prevention and control program" (42 C.F.R. § 483.80(a), Ex. DUT-FED-023).101
Third, the liability shields declared compliance the standard of care. Texas shields a business from exposure liability unless the claimant proves it "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease" (Exs. DUT-TX-014, DUT-TX-015); Arizona presumes good faith only for a business that "adopted and implemented reasonable policies related to the public health pandemic" (Ex. DUT-AZ-010). Illinois, California and Pennsylvania enacted no shield and left the ordinary standard of care in force, and North Carolina's commands notice of the measures taken; the footnote quotes each (Exs. DUT-IL-005, DUT-IL-006, DUT-IL-012, DUT-CA-013, DUT-PA-011, DUT-NC-006). Ohio's shield sets a culpability floor without a compliance clause: "A government order, recommendation, or guideline shall neither create nor be construed as creating a duty of care upon any person," and Ohio's compulsion lies in R.C. 3701.352, 3701.81(C) and 4101.11 and in the orders' own conditions (Ex. DUT-OH-020). In every form the legislatures' premise is the same: compliance with the governmental health standards is what a business owed.102
The courts treated the regime as law binding businesses (Exs. DUT-TX-021, DUT-AZ-019, DUT-CA-020, cited as adjudications), the Supreme Court of California describing every employer allowed to operate as "subject to strict regulations designed to limit transmission of the virus." An instrument written in "should" or "encouraged" is treated here as a recommendation, compulsory only through the order, rule, statute or shield that made it so, and that instrument is named. An agency or facility that screened at its door, cohorted its residents, masked and tested its staff and sent its office home in that environment was not choosing; it was complying, and the Service's premise under Q&A-14, that no command reached the employer, fails wherever a command did (Ground 6).103