Home Care, Nursing and Senior Living

The six quarters

Each of the six quarters is treated here on its own instruments. For each, this section identifies the orders in force on every day of the quarter in every State, the orders in force in the States and metropolitan areas where the industry operated, the functions those orders reached, and the finding. The third quarter of 2021, the quarter the Service most often describes as one in which no order was in force, is treated last and at length.

The second quarter of 2020

From April 1 through June 30, 2020, and for the wages of March 13 through March 31, 2020 that the Form 941-X assigns to this quarter, the operation of every employer in this industry was partially suspended by orders in force in every State on every day.¹⁰⁴

The federal instruments in force

On every day of the quarter, on April 1 and on June 30, 2020, the following governed every certified provider in the country: the visitation, communal-dining, group-activity and screening directive of March 13, 2020 (Ex. SEC-04-001; Ex. SEC-04-002), enforced through the survey process at the visitation and infection-control tags; the hospice and home health infection-control directives of March 9 and 10, 2020 (Ex. SEC-04-011; Ex. SEC-04-010); the intermediate-care directive of March 30, 2020 (Ex. SEC-04-013); the transfer and cohorting directive of April 13, 2020 (Ex. SEC-04-026); the section 1135 blanket waivers, retroactive to March 1, 2020 (Ex. SEC-04-015), which altered the initial assessment, aide supervision, volunteer, face-to-face, three-day stay, nurse aide training, physical environment and roommate rules; the interim final rule of April 6, 2020 (Ex. SEC-04-017) on telecommunications in home health, homebound status and the hospice face-to-face encounter; the notification and reporting condition of May 8, 2020 (Ex. SEC-04-006; Ex. SEC-04-007), requiring reports to the National Healthcare Safety Network no less than weekly and notice to families by 5 p.m. the next day; the reopening framework of May 18, 2020 (Ex. SEC-04-012), which the States adopted by order; the survey suspension and prioritization directives of March 4 and 23, 2020 (Ex. FED-164; Ex. FED-099); and every State's Appendix K (Ex. SEC-04-078).¹⁰⁵ The Families First Coronavirus Response Act's paid-leave mandate took effect April 1, 2020 (Ex. FED-170; Ex. FED-171); the Department of Veterans Affairs announced on March 10, 2020 that it had barred visitors from its nursing homes and suspended new admissions (Ex. AGY-FED-HEALTH-OTHER-064, the Department's announcement, cited as context for the directive it describes and not as an order); the Office for Civil Rights and the Drug Enforcement Administration altered the rules of telehealth and telemedicine prescribing (Ex. FED-194; Ex. AGY-FED-HEALTH-OTHER-009).¹⁰⁶

The State and local instruments in force

Forty-two States and territories kept mandatory stay-at-home orders for part or all of the quarter, and every State kept its schools closed through the end of the school year.¹⁰⁷ Every State adopted the federal visitation restriction by order and most extended it to assisted living and residential care: New Mexico (Ex. NM-002) and Connecticut (Ex. CT-059) on March 13, New Hampshire on March 13, effective March 15 (Ex. NH-001), Florida on March 15 (Ex. SEC-04-040), New Jersey (Ex. NJ-063) and Washington (Ex. WA-012) on March 16, Alabama on March 19 (Ex. AL-005), North Carolina on March 23 and April 8 (Ex. NC-004; Ex. NC-007), Mississippi on March 24 (Ex. MS-006), Maryland on March 23, April 5 and April 29 (Ex. MD-040; Ex. MD-042; Ex. MD-043), North Dakota on April 6 (Ex. ND-020), Arizona on April 7 (Ex. AZ-013), Georgia on April 8 (Ex. GA-013) and the District of Columbia on April 15 (Ex. DC-008), with Colorado's Public Health Order 20-20 of March 12 (Ex. CO-002) and Ohio's Director's orders from March 13 (recited in Ex. SEC-04-075) in force throughout; each was in force on April 1, or from its date, and on June 30, 2020.¹⁰⁸ Nineteen States and New York ordered hospitals to postpone elective and non-urgent procedures between March 19 and April 3, 2020 (Ex. AK-007; Ex. AZ-004; Ex. TX-004; Ex. UT-003; Ex. IA-005; Ex. AR-040; Ex. MD-040), cutting the referral stream of every home health agency, hospice and skilled nursing facility; the orders were lifted by phase from late April through June.¹⁰⁹ The universal testing orders began inside the quarter: Maryland's Governor on April 29 (Ex. MD-043); Florida's Agency for Health Care Administration on May 8 and June 15 (Ex. AGY-ST-HEALTH-SUBORDERS-072; Ex. AGY-ST-HEALTH-SUBORDERS-073; Ex. AGY-ST-HEALTH-SUBORDERS-074; Ex. AGY-ST-HEALTH-SUBORDERS-075); New York's Executive Order 202.30 on May 10 (Ex. SEC-04-049), requiring twice-weekly testing of all nursing home and adult care facility personnel and a negative test before any hospital discharge to a nursing home; New Jersey's Executive Directive 20-013 on May 12 (Ex. SEC-04-042), requiring a baseline test of every resident and staff member by May 26; Missouri's Department of Health and Senior Services, which on May 18 ordered twenty-four-hour reporting of every case by long-term care, assisted living and residential care facilities (Ex. MO-009); Ohio's Director on May 27 (Ex. OH-079); Contra Costa County on May 29 (Ex. MET-SFO-036); Connecticut's Executive Order 7UU on June 1 (Ex. CT-020), requiring weekly testing of nursing home staff; Delaware's Secretary by orders effective June 1 (Ex. AGY-ST-HEALTH-SUBORDERS-063; Ex. AGY-ST-HEALTH-SUBORDERS-064); and Pennsylvania's Secretary on June 8 and June 26 (Ex. SEC-04-050).¹¹⁰ The county and city health officers acted earlier and in more detail: San Diego County barred non-essential personnel from hospitals and long-term care facilities on March 13 (Ex. MET-SAN-002); Dane County's mass-gathering moratorium of March 15 exempted long-term care facilities only if they restricted visitation to compassionate care, cancelled group activities and communal dining and screened residents and staff (Ex. MET-MKE-002); Minneapolis closed adult day care centers on March 17 (Ex. MET-MSP-003) and imposed operational conditions on every licensed congregate health care facility on April 28 ("All communal dining and activities are to be suspended") (Ex. MET-MSP-008); Dallas County ordered long-term care facilities on March 29 and June 16 (Ex. MET-DFW-009; Ex. MET-DFW-020); Fulton County's Board of Health ordered on March 31 (Ex. MET-ATL-002); St. Louis County ordered residential living facilities on April 2 (Ex. MET-STL-056) and St. Charles County on April 8 (Ex. MET-STL-028); Bexar County ordered long-term care staff to work at a single facility on April 3 (Ex. MET-SAT-009); San Bernardino County ordered screening, masking, N95 use and single-facility staffing at licensed facilities on April 6 and May 8 (Ex. MET-RIV-022; Ex. MET-RIV-027); Philadelphia ordered long-term care facilities on April 8 (Ex. SEC-04-047); Los Angeles County ordered every licensed congregate health care facility on April 24 to bar visitors, cancel communal dining, screen and mask staff and cohort residents (Ex. MET-LA-066); King County's Local Health Officer issued isolation and quarantine orders on March 28 and May 21 (Ex. MET-SEA-004; Ex. MET-SEA-050) and, on May 11, a face-covering directive, an airborne-transmission control on indoor public spaces in the county (Ex. MET-SEA-047); and Denver's stay-at-home order of March 23 governed the quarter's first weeks (Ex. MET-DEN-005).¹¹¹

Visitation (VS) was terminated in every nursing home in the country and in every assisted living community in the States that extended the ban; the function did not exist for the quarter except for end-of-life visits. Dining and activities (DN) were terminated: communal dining and every group activity were cancelled by federal direction on March 13 and by county order in Los Angeles and Minneapolis, and did not resume anywhere before the States' phased orders of June. Residential care (RS) was reorganized by order: admissions were conditioned on hospital certification and negative tests in New York and on State health department review in New Jersey; every new admission was placed in fourteen-day observation; residents were cohorted and moved to dedicated units; and roommate and transfer rights were waived to permit it. Intake and referrals (IN) collapsed with the elective-procedure orders and the hospital discharge rules. Infection control and staff mandates (IC) became a daily compelled operation: screening of every person at every entry, temperature checks each shift, personal protective equipment under the allocation orders, and, from May, universal testing on State schedules. In-home visits (HC) were performed, where the patient would receive the aide at all, on screening at the threshold, under the source-control and infection-prevention rules the directives imposed on every visit, and under the stay-at-home orders' travel provisions; skilled nursing and assessments (SN) moved to record review and telecommunications under the waivers and the April 6 rule; transport (TR) was reached by the stay-at-home orders and the transit reductions; hiring and credentialing (HR) were altered by the nurse aide training waivers, the out-of-State credential orders and the single-facility staffing orders; offices (OF) were placed on telework by the stay-at-home orders; the workforce (WF) was confined except for its own essential work and kept home by the school and child-care closures; and the patients and payers (CB) were confined by the stay-at-home orders and governed by the waivers and interim final rules.¹¹²

The Service's position for this quarter

The rules the Service itself published while this quarter was being lived were its frequently asked questions as posted on April 29, 2020, which contained no "nominal" test and no percentage, answered the question about employers designated essential solely by asking whether the governmental order "allows the employer to remain open," and treated a workplace closed "for certain purposes, but ... open for other purposes" as partially suspended without qualification.¹¹³ A letter that measures this quarter by the Notice's March 1, 2021 glosses measures it by rules that did not exist while the quarter's orders were in force and that, by the United States' account, have no force of law.

The finding

The third quarter of 2020

From July 1 through September 30, 2020 the operation of every employer in this industry was partially suspended by the federal testing condition and its schedule, by the conditional visitation rule that replaced the blanket ban on September 17, by the reopening phases the States adopted by order, and by the State and local testing, admission and visitation orders in force throughout.

The federal instruments in force

The March 13 visitation and dining directive governed until September 17, 2020 (Ex. SEC-04-001; Ex. SEC-04-002), when QSO-20-39-NH (Ex. SEC-04-002) replaced it with a conditional rule: "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 sat in a county with positivity under ten percent.¹¹⁴ The reopening framework of May 18, as the States adopted it by order (Ex. SEC-04-012; Ex. SEC-04-043; Ex. WV-080; Ex. LA-050), governed every facility's phase throughout the quarter, holding facilities at their "highest level of vigilance and mitigation" until community and facility criteria were met, conditioning relaxation on "a single baseline COVID-19 test" of every resident and staff member, and inviting States to require "a longer waiting period (e.g., 28 days)" before relaxing restrictions.¹¹⁵ On August 26 the Secretary announced (Ex. SEC-04-005), and on September 2 adopted with the force of law (Ex. SEC-04-004), the testing condition at 42 C.F.R. § 483.80(h): "the facility must test residents and facility staff, including individuals providing services under arrangement and volunteers," monthly, weekly or twice weekly by county positivity, with a duty, upon identifying a symptomatic or positive individual, to "take actions to prevent the transmission of COVID-19," which the implementing memorandum fixed to bar symptomatic staff who refuse testing from the building "until the return to work criteria are met"; noncompliance was cited at F886.¹¹⁶ The reporting condition of § 483.80(g) (Ex. SEC-04-006), the waivers (Ex. SEC-04-015), the April 6 interim final rule (Ex. SEC-04-017), Appendix K (Ex. SEC-04-078) and the survey-and-enforcement directives of June 1 and August 17, 2020 (Ex. FED-165; Ex. FED-166) were in force on every day, on July 1 and on September 30, 2020.¹¹⁷

The State and local instruments in force

The State universal testing orders ran their courses inside the quarter: Pennsylvania's skilled nursing facilities by July 24 and its personal care homes, assisted living residences and intermediate care facilities by August 31 (Ex. SEC-04-050); Florida's assisted living facilities and nursing homes, barred from July 7 from admitting any untested staff member and required to test every staff member every two weeks (Ex. AGY-ST-HEALTH-SUBORDERS-074; Ex. AGY-ST-HEALTH-SUBORDERS-075), with the Department of Health's entry and testing rules renewed August 6 (Ex. AGY-ST-HEALTH-SUBORDERS-079; Ex. AGY-ST-HEALTH-SUBORDERS-080) and the visitation prohibition extended on July 13 to September 1 (Ex. SEC-04-072); New York's twice-weekly personnel testing under Executive Order 202.30 and its successors (Ex. SEC-04-049; Ex. NY-021); New Jersey's retesting under Executive Directive 20-013 (Ex. SEC-04-042; Ex. NJ-066); Ohio's testing order of May 27 (Ex. OH-079); Connecticut's weekly staff testing from the week of June 14 (Ex. CT-020); Maryland's Governor's order of April 29 (Ex. MD-043).¹¹⁸ The States fixed the phases of resumption by order: New Jersey's Executive Directive 20-026 of August 20 (Ex. SEC-04-043) placed every facility in outbreak in Phase 0 with no admissions and fixed the conditions of each later phase; West Virginia's Executive Order 61-20 of August 12 (Ex. WV-045) and its reopening plan of August 21 (Ex. WV-080) governed nursing homes and assisted living residences; Louisiana's State Health Officer ordered nursing home visitation and adult residential care conditions on September 18 (Ex. LA-050); Tennessee's Executive Order 49 and visitation guidelines of June 12 and 15 (Ex. TN-019; Ex. TN-052) permitted limited visitation on conditions; Montana's directive of July 13 governed nursing homes (Ex. MT-035); Rhode Island's Executive Order 20-70 of September 2 continued its hospital and community-based health care rules (Ex. RI-023); Florida's Emergency Order 20-009 of September 1 admitted essential caregivers on conditions (Ex. SEC-04-041; Ex. FL-044); Maryland's Governor's order of April 29 stood (Ex. MD-043); Georgia's Executive Order 04.08.20.03 stood until September 15 (Ex. GA-013); Colorado's Public Health Order 20-20 stood as amended (Ex. CO-002); and Pennsylvania's Department of Health ordered long-term care facilities on August 17 to implement measures for the use and distribution of personal protective equipment (Ex. AGY-ST-HEALTH-SUBORDERS-014); the instruments in force on July 1 remained in force on September 30, 2020, except Georgia's, and those issued inside the quarter were in force from their dates.¹¹⁹ New Hampshire's Department administered its facilities under long-term care guidance of July 1 and 10 (Ex. NH-062; Ex. NH-061), cited as the Department's administration of the Governor's emergency orders and not as an order. Philadelphia rescinded its long-term care order on September 23 (Ex. SEC-04-048) and Connecticut its visitor restrictions on September 25 (Ex. CT-060), in each case leaving the federal conditional rule and the State testing regime in force.¹²⁰ Locally, Bexar County barred nursing home visitation and continued single-facility staffing on July 17 (Ex. MET-SAT-035); Dallas County's long-term care order of August 4 ran until March 8, 2022 (Ex. MET-DFW-025); Minneapolis rescinded its congregate-care regulation on July 24 (Ex. MET-MSP-012); Los Angeles County's April 24 order stood (Ex. MET-LA-066); Contra Costa County required health care facilities to offer testing on September 24 (Ex. MET-SFO-037); and Allegheny County lifted its county order on September 24, leaving the State's limitations in force (Ex. MET-PIT-012).¹²¹

Visitation (VS) remained terminated until September 17 and then conditional, with indoor visitation unlawful in any facility with a case in the prior fourteen days or in a county above ten percent positivity; wherever either trigger operated, the condition barred indoor visitation outright. Dining and activities (DN) resumed, where they resumed, only by phase and only in facilities that had passed the waiting period without a case. Residential care (RS) ran on the testing condition, the cohorting rule and the State admission phases. Infection control (IC) was a federal condition of participation enforced by penalty from September 2, and a State order everywhere from July. Intake (IN) resumed under the phased elective-procedure orders and remained conditioned on New York's discharge rule and New Jersey's Phase 0. In-home visits (HC), skilled nursing (SN), transport (TR), hiring (HR), offices (OF), workforce (WF) and patients and payers (CB) remained under the waivers, the April 6 rule, the statewide face-covering orders, airborne-transmission controls on every indoor workplace, that thirty-three States kept on October 1, 2020, and the remote and hybrid school openings of the fall.¹²²

The finding

The fourth quarter of 2020

From October 1 through December 31, 2020 the operation of every employer in this industry was partially suspended by the federal testing and visitation conditions through the largest surge of the period, by the State re-tightening orders of October through December, and by the county and city congregate-care orders.

The federal instruments in force

The testing condition governed on every day (Ex. SEC-04-004; Ex. SEC-04-005), and wherever county positivity exceeded ten percent the schedule required twice-weekly testing of every staff member, contractor and volunteer. The conditional visitation rule of September 17 (Ex. SEC-04-002) barred indoor visitation in any facility with a new case in fourteen days or in a county above ten percent positivity, and every facility that recorded a new case fell under the bar for fourteen days at a time. The reporting condition (Ex. SEC-04-006), the waivers (Ex. SEC-04-015), the April 6 rule (Ex. SEC-04-017), Appendix K (Ex. SEC-04-078) and the enforcement directive of August 17 (Ex. FED-166) were in force on October 1 and on December 31, 2020; the interim final rule of November 6, 2020 fixed vaccine coverage and the Medicaid maintenance-of-effort condition (Ex. FED-093); and the Pharmacy Partnership for Long-Term Care began vaccinating residents and staff in the last two weeks of December under State priority orders (Ex. FL-052).¹²³

The State and local instruments in force

The States re-tightened by order: Michigan's Department of Health and Human Services ordered residential care facilities on October 6 (visitation limits, testing, personal protective equipment, isolation and reporting) (Ex. MI-051), with successive orders through the winter; Arkansas revised its long-term care visitation, screening and staffing directive on October 6 (Ex. AR-064) and again on December 23 (Ex. AR-068); Utah's Department of Health declared a statewide public health emergency by Public Health Order 2020-17 of October 14, the predicate for its later orders, which stood through the period (Ex. UT-025); Idaho issued long-term care visitation guidelines on October 23 (Ex. ID-049) and re-tightened statewide on October 26, November 13 and December 30 (Ex. ID-009; Ex. ID-010; Ex. ID-011); Florida's Emergency Order 20-011 of October 22 governed visitation until March 2021 (Ex. FL-049); West Virginia's Executive Order 79-20 of November 13 required twice-weekly testing of every nursing home and assisted living staff member (Ex. WV-053); Rhode Island's sector rules took effect November 9 (Ex. RI-070); Washington's Proclamation 20-25.8 of November 15 (Ex. WA-047) and Proclamation 20-24.2 of November 25 (Ex. WA-049) re-imposed statewide limits and non-urgent procedure restrictions; Illinois's Executive Order 2020-73 of November 18 imposed Tier 3 mitigations (Ex. IL-031); Kentucky's Executive Order 2020-968 of November 18 did the same (Ex. KY-033); Pennsylvania ordered hospitals to reduce elective procedures from November 23 (Ex. PA-025); New Jersey's Department of Health ordered weekly point-of-care staff testing on November 30 (Ex. AGY-ST-HEALTH-SUBORDERS-032) and a testing standing order on December 2 (Ex. AGY-ST-HEALTH-SUBORDERS-031); Tennessee's Executive Orders 68 and 73 of December 4 and 22 continued its long-term care rules (Ex. TN-026; Ex. TN-028); Kansas's Executive Order 20-69 of December 9 required adult care home testing (Ex. KS-037); Maryland's Department amended its health care orders (Ex. MD-050) and the Governor ordered quarantine (Ex. MD-023) on December 17; Florida's Executive Order 20-315 of December 23 fixed vaccine priority for long-term care residents and staff (Ex. FL-052); and Louisiana's order of September 18 stood (Ex. LA-050); the instruments in force on October 1 remained in force on December 31, 2020, and those issued inside the quarter were in force from their dates.¹²⁴ Locally, Detroit's Emergency Order of October 9 reached in-home services (Ex. MET-DET-001); Los Angeles County added a skilled nursing facility order on October 5 (Ex. MET-LA-024); Dallas County's August 4 order stood (Ex. MET-DFW-025); and St. Louis County's residential facilities and rapid-notification orders stood (Ex. MET-STL-056; Ex. MET-STL-083).¹²⁵

Visitation (VS) was again terminated in most facilities on most days by operation of the fourteen-day and ten percent conditions and by the State re-tightening orders. Dining and activities (DN) regressed by phase as facilities recorded cases. Residential care (RS) ran on twice-weekly testing, cohorting and admission holds. Infection control (IC) reached its most intensive compelled form of the period. Intake (IN) was cut again by Pennsylvania's and Washington's procedure orders and by hospital capacity. In-home visits (HC) and skilled nursing (SN) ran on screening, the source-control and exposure-control rules of the directives, and the waivers under the winter stay-at-home advisories and orders; the workforce (WF) was quarantined by exposure orders and kept home by remote schooling; transport (TR), hiring (HR), offices (OF) and patients and payers (CB) remained under the orders described.¹²⁶

The finding

The first quarter of 2021

From January 1 through March 31, 2021 the operation of every employer in this industry was partially suspended by the federal testing and visitation conditions, by the State residential-care and testing orders of the winter, by the federal conveyance order from February 1, and by the conditional return of indoor visitation that the Secretary permitted only from March 10, 2021.

The federal instruments in force

The testing condition (Ex. SEC-04-004), the conditional visitation rule (Ex. SEC-04-002), the reporting condition (Ex. SEC-04-006), the waivers (Ex. SEC-04-015), the April 6 rule (Ex. SEC-04-017) and Appendix K (Ex. SEC-04-078) governed on every day, on January 1 and on March 31, 2021. The President directed the Secretary of Labor on January 21 to consider an emergency temporary standard (Ex. FED-062). The Centers for Disease Control and Prevention's conveyance order took effect February 1 (Ex. FED-020) and governed every aide's transit trip and every facility van. On March 10 the Secretary revised the visitation rule (QSO-20-39-NH REVISED 03/10/2021, Ex. FED-155, as recited in Ex. SEC-04-003) to permit indoor visitation "at all times and for all residents" except where the resident was unvaccinated in a county above ten percent positivity with less than seventy percent of residents vaccinated, where the resident had a confirmed infection, or where the resident was in quarantine; the reopening framework of May 18, 2020 expired the same day (Ex. SEC-04-012; Ex. FED-157).¹²⁷

The State and local instruments in force

Ohio's Sixth Amended Director's Order of January 7 limited access to nursing homes and similar facilities (Ex. SEC-04-075), and its Seventh Amended Order of March 22 permitted access with exceptions, in force until June 18 (Ex. OH-075); New Jersey revised Executive Directive 20-026 on January 6 (Ex. NJ-074) and issued its visitation directive 21-001 on March 22 (Ex. NJ-078); Michigan's residential care orders continued (Ex. MI-051); Idaho issued quarantine guidance for long-term care facilities on January 27 (Ex. ID-060) and revised its visitation guidelines on March 19 (Ex. ID-050); Washington's Proclamation 20-66.5 of January 19 continued the Safe Start long-term care rules through the emergency (Ex. WA-057); Michigan ordered testing of State nursing home inspectors before entry on January 11 (Ex. AGY-ST-HEALTH-SUBORDERS-100); Florida's Agency for Health Care Administration renewed its entry and staff-testing rules on February 2 (Ex. AGY-ST-HEALTH-SUBORDERS-084; Ex. AGY-ST-HEALTH-SUBORDERS-085) and the Division of Emergency Management rescinded its visitation orders on March 22 (Ex. FL-055); Pennsylvania ordered skilled nursing facilities to complete a vaccine needs assessment on March 16 (Ex. AGY-ST-HEALTH-SUBORDERS-017) and continued its elective-procedure reduction (Ex. PA-025); North Dakota rescinded its visitation order effective March 12 (Ex. ND-048); Arizona's Executive Order 2020-22 ran until April 1 (Ex. AZ-013); West Virginia's, Kansas's and Arkansas's testing and visitation orders stood (Ex. WV-053; Ex. KS-037; Ex. AR-068); Texas's Executive Order GA-34 of March 2, effective March 10 (Ex. TX-029), ended most general restrictions while preserving the reporting order GA-10 (Ex. TX-005) and leaving the long-term care rules of the Health and Human Services Commission in place; the District of Columbia's Mayor's Order 2021-038 of March 17 governed the District's phase (Ex. DC-016); and Kentucky's General Assembly fixed by joint resolution on March 30 the orders that would continue (Ex. KY-046); the federal conditions and the State testing and residential-care orders named here were in force on January 1 and on March 31, 2021, and the instruments rescinded inside the quarter are so dated.¹²⁸ The statewide face-covering requirements of forty States, airborne-transmission controls on every indoor workplace and public space, and the emergency declarations of fifty-one jurisdictions were in force on January 4, 2021, and thirty-one and forty-nine on April 5, 2021.¹²⁹

Visitation (VS) was terminated or conditional in every facility until March 10 and conditional thereafter; dining and activities (DN) remained by phase; residential care (RS) and infection control (IC) ran on the testing condition and the State testing orders through the January peak; intake (IN) remained conditioned on discharge rules and Pennsylvania's procedure order; in-home visits (HC) and skilled nursing (SN) ran under the screening, source-control and exposure-control rules and the waivers; transport (TR) came under the federal conveyance order; and hiring (HR), offices (OF), workforce (WF) and patients and payers (CB) remained under the orders described.¹³⁰

The finding

The second quarter of 2021

From April 1 through June 30, 2021 the operation of every employer in this industry was partially suspended by the conditional visitation rule as revised April 27, by the testing condition, by the vaccine education, offering and reporting condition effective May 21, by the State residential-care and testing orders that continued after the general orders ended, and, from June 21, by the OSHA Healthcare Emergency Temporary Standard. The Service's premise that the quarter's orders ended with the States' reopening dates describes one layer of the orders, the general orders on the public; it does not describe the orders on this industry, which were never the general orders and did not end with them.

The federal instruments in force

The Secretary revised the visitation rule again on April 27, 2021 (Ex. SEC-04-003), keeping the exceptions for unvaccinated residents in high-positivity, low-vaccination counties, for confirmed cases and for quarantine, and that version governed through November 12, 2021.¹³¹ The testing condition (Ex. SEC-04-004) and the reporting condition (Ex. SEC-04-006) governed on every day. On May 10 the Secretary ended certain long-term care waivers, restoring the notice, care-plan and pre-admission screening requirements while the rest continued (Ex. SEC-04-025).¹³² On May 13 the Secretary adopted, effective May 21, the condition at 42 C.F.R. § 483.80(d)(3) (Ex. SEC-04-008), requiring every facility to educate residents and staff about the vaccine, to offer it, and to document each offer and refusal, and the weekly reporting of vaccination status.¹³³ On June 21 OSHA published 29 C.F.R. § 1910.502 (Ex. SEC-04-014), effective on publication and applicable to "all settings where any employee provides healthcare services or healthcare support services," with compliance required by July 6 and July 21; its inspection directive followed on June 28 (Ex. FED-081).¹³⁴ The conveyance order (Ex. FED-020), the waivers (Ex. SEC-04-015), the April 6 rule (Ex. SEC-04-017) and Appendix K (Ex. SEC-04-078) governed on every day, on April 1 and on June 30, 2021.

The State and local instruments in force

Ohio's Director amended the testing orders on May 4 to require twice-weekly testing of unvaccinated staff at nursing homes and residential care facilities, in force to July 1, 2022 (Ex. OH-049; Ex. OH-071), and rescinded the access order on June 18 (Ex. OH-075); Michigan reissued its residential care order on May 21, in force through the third quarter (Ex. MI-072); Pennsylvania ordered on May 26 that skilled nursing facilities make weekly reports beginning May 30 (Ex. PA-038); Massachusetts's Commissioner ordered face coverings in health care settings including home health on May 28, an occupational airborne-transmission control retained after the general rule ended (Ex. MA-050), the Governor declared a public health emergency under chapter 17, section 2A the same day (Ex. MA-049), and the Commissioner reissued the long-term care control order on June 14 (Ex. MA-054; Ex. MA-064); New Jersey's Executive Order 242 of May 24 ended the general mask rule on the public and kept the face-covering requirement in health care settings including home health, the same occupational control (Ex. NJ-050), its Executive Directive 21-001 was revised May 12 (Ex. NJ-078), and its adult day directives of June 14 and 15 fixed the conditions of reopening for adult medical day care and PACE centers (Ex. NJ-081; Ex. AGY-ST-HEALTH-SUBORDERS-059; Ex. AGY-ST-HEALTH-SUBORDERS-060); Kansas's Secretary ordered adult care home testing on June 18 (Ex. KS-052); Delaware's Secretary signed, on June 17 and 25, emergency orders amending the hospital, nursing facility and aide-only home health agency regulations, effective July 1, 2021 (Ex. DE-062; Ex. DE-063; Ex. DE-061); Maryland amended its health care and nursing home orders on June 15 (Ex. MD-055; Ex. MD-056); Idaho revised its visitation guidelines on June 9 (Ex. ID-051) under the Stage 4 Stay Healthy Guidelines of May 11 (Ex. ID-013); Colorado's Seventh Amended Public Health Order 20-20 issued May 31 (Ex. CO-042); West Virginia's Executive Order 13-21 of April 30 continued twice-weekly testing (Ex. WV-064); Alaska's Commissioner issued a public health emergency order on April 30 (Ex. AK-030); New York readopted its health-care face-covering regulation, the same occupational control, on May 26 and June 23 (Ex. NY-134; Ex. NY-133) and rescinded the Executive Order 202 and 205 series by Executive Order 210 of June 24, effective June 25 (Ex. NY-049); Washington's Secretary of Health ordered face coverings in health care and congregate settings on June 29, an airborne-transmission control on every such workplace in the State (Ex. WA-070); Vermont's Executive Order 06-21 of June 15 continued its facility provisions (Ex. VT-044); Indiana's Executive Order 21-17 of June 30 rescinded the directives of the earlier orders at 11:59 p.m. that day while continuing the public health emergency and the quarantine authority, under which the Control Measures of July 19 and Executive Orders 21-19 and 21-24 followed (Ex. IN-066; Ex. IN-092; Ex. IN-068; Ex. IN-071); Nevada adopted the federal healthcare standard effective July 1 (Ex. AGY-ST-LABOR-WORKPLACE-040); Kentucky's Executive Orders 2021-326 and 2021-386 of May 13 and June 11 restated its remaining requirements (Ex. KY-048; Ex. KY-049); Louisiana released its medical and surgical procedures order on May 21 (Ex. LA-047); and California's stay-at-home order ended June 15 (Ex. CA-002) while its facility letters continued (Ex. SEC-04-068; Ex. SEC-04-069); the federal conditions and the residential-care and testing regimes of Ohio, Michigan, West Virginia, Kansas, Maryland and New Jersey, in the versions then current, were in force on April 1 and on June 30, 2021.¹³⁵ Locally, San Bernardino County issued a new licensed-entity order on June 15, in force through the third quarter (Ex. MET-RIV-031); San Diego County's Limited Order of June 15 preserved its isolation and quarantine orders (Ex. MET-SAN-022); San Francisco's Safer Return Together order took effect June 15 (Ex. MET-SFO-008); and Cuyahoga County ordered masks and screening in county buildings on June 28 (Ex. MET-CLE-061).¹³⁶

Visitation (VS) was conditional in every nursing home under the April 27 rule and under the State orders of Michigan, Ohio, New Jersey, Louisiana, Massachusetts, Maryland, Idaho, Arkansas, Washington and Colorado; dining and activities (DN) resumed on conditions; residential care (RS) ran on testing, quarantine of unvaccinated new admissions and the vaccine offering condition; infection control (IC) added the vaccine education and documentation condition from May 21 and the written plan, screening, distancing, barrier, ventilation, log and medical-removal regime of the OSHA standard from June 21; intake (IN) remained conditioned on New Jersey's phases, Massachusetts's admissions authority and Pennsylvania's procedure order to August 23; in-home visits (HC) and skilled nursing (SN) ran under the health-care face-covering orders of New Jersey, Massachusetts, New York, Washington and California, the airborne-transmission controls those States kept in force after their general mask orders ended, under the waivers and the April 6 rule, and, from June 21, under the standard's screening and plan requirements at the threshold of every home; transport (TR) remained under the conveyance order; hiring (HR) came under the vaccine documentation condition; offices (OF), workforce (WF) and patients and payers (CB) remained under the orders described.¹³⁷

The finding

The third quarter of 2021

From July 1 through September 30, 2021 the operation of every employer in home health, home care, hospice, skilled nursing and senior living in the United States was partially suspended due to orders from appropriate governmental authorities in force on every day of the quarter. Congress re-enacted the Suspension Clause for this quarter on March 11, 2021 in the same words it used in March 2020, and left it in place when it terminated the fourth quarter on November 15, 2021. The Service's letters describe this quarter as one in which no order was in effect. For this industry the description is false in every State on every day. On July 1, 2021 every nursing facility in the country was under a federal testing condition enforced by civil money penalty, a federal visitation condition that barred indoor visits to unvaccinated residents in every facility with fewer than seventy percent of its residents vaccinated that sat in a county whose positivity exceeded ten percent, a condition the Delta surge triggered across the South and much of the country in August and September, a federal vaccine-offering and reporting condition ten days old, and a federal occupational standard nine days old that reached every home health agency, hospice and assisted living community in the nation; on September 30, 2021 every one of those instruments was still in force, the testing condition had been revised inside the quarter, and the workforce of at least fifteen States and cities had been placed under vaccination or testing mandates issued inside the quarter, seven of them naming home care agencies, home health aides or home care attendants in terms.

A. The premise and the statute

The Service's form sentence for this quarter is that "there were no government orders related to COVID-19 in effect during the quarter(s) you claimed ERC which could have fully or partially suspended your trade or business."¹³⁸ The premise derives from the end of the general orders on the public. Between May 24 and July 1, 2021 New Jersey, New York, California, Illinois, Pennsylvania, Massachusetts, Michigan, Minnesota, Washington, Oregon, Colorado and most other States ended their capacity limits, gathering caps and general mask rules, and the Kaiser Family Foundation's table for July 2, 2021 records no State with a stay-at-home order and only a handful with statewide mask requirements.¹³⁹ The Service reads that table as the end of the orders. It records the end of one layer of them, the general orders on the public, and nothing else. For this industry the premise fails at the threshold: the orders on this industry were never the general orders. They were the conditions of participation, the occupational standard and the health department directives, and none of those ended with the reopening dates.

The statute for this quarter

Section 3134(c)(2)(A)(ii)(I) of the Code, enacted March 11, 2021 for calendar quarters beginning after June 30, 2021, is word for word the CARES Act clause; section 3134(n) fixed its application to wages paid before January 1, 2022, and section 80604 of the Infrastructure Investment and Jobs Act moved that date to October 1, 2021 for every employer other than a recovery startup business.¹⁴⁰ The Service itself carried the suspension rules into the quarter: Notice 2021-49 states that the rules of Notice 2021-20 "continue to apply for the third and fourth calendar quarters of 2021" and restates the Suspension Clause for them, and Notice 2021-65 states that the suspension rules "no longer apply for the fourth calendar quarter of 2021," which is a statement that they applied for the third.¹⁴¹ Congress chose the clause for this quarter against a record in which the testing condition had been in force for six months, the visitation condition had just been revised, and the President had directed the Secretary of Labor to consider the standard that issued on June 21. The elements of the clause, stated on the statute page, are proved for this quarter by the instruments that follow.

B. The instruments in force

B-1. The OSHA Healthcare Emergency Temporary Standard, 29 C.F.R. § 1910.502

Issuer: the Secretary of Labor, through OSHA, under 29 U.S.C. § 655(c). Dates: published and effective June 21, 2021; compliance required by July 6, 2021 for every provision except the physical-barrier, ventilation and training provisions, required by July 21, 2021; non-recordkeeping provisions withdrawn December 27, 2021. Operative clause: "This section applies to all settings where any employee provides healthcare services or healthcare support services," excluding home healthcare 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," an exception that applied only where all three of its conditions held at once in a standard whose preamble brought home healthcare within its scope in terms. The standard required each employer to "develop and implement a COVID-19 plan for each workplace," to designate a safety coordinator, to conduct a hazard assessment, to "limit and monitor points of entry" and screen and triage all "patients, residents, delivery people and other visitors" and every other non-employee, to provide and require facemasks and respirators, to ensure six feet of distance indoors where feasible, to install cleanable or disposable solid barriers at fixed work locations outside direct patient care, to clean and disinfect, to review ventilation, to screen every employee before each shift, to remove employees with symptoms or positive tests and pay medical removal protection benefits of up to $1,400 per week, to keep a COVID-19 log, and to report work-related fatalities and hospitalizations.¹⁴² Enforcement: citation and penalty under 29 U.S.C. § 666, through the inspection directive of June 28, 2021 and the revised national emphasis program of July 7, 2021; adopted in Nevada effective July 1, 2021 and supplemented in Oregon by administrative order of September 14, 2021.¹⁴³ Status: in force July 1, 2021; in force September 30, 2021. Functions: HC, SN, RS, IC, HR, OF, WF.

B-2. The federal testing condition, 42 C.F.R. § 483.80(h), and its September 10, 2021 revision

Issuer: the Secretary of Health and Human Services, by interim final rule CMS-3401-IFC, and CMS, by QSO-20-38-NH. Dates: September 2, 2020; QSO-20-38-NH revised September 10, 2021. Operative clause: "the facility must test residents and facility staff, including individuals providing services under arrangement and volunteers, for COVID-19," at the frequency the Secretary set by county positivity ("Low (<5%) once a month; Medium (5%-10%) once a week; High (>10%) twice a week"), with a duty, "[u]pon the identification of an individual ... with symptoms consistent with COVID-19, or who tests positive for COVID-19," to "take actions to prevent the transmission of COVID-19," which QSO-20-38-NH fixed to mean that "staff who have signs or symptoms of COVID-19 and refuse testing are prohibited from entering the building until the return to work criteria are met." The September 10, 2021 revision keyed routine testing to the county's level of community transmission and exempted fully vaccinated staff from routine testing while keeping outbreak testing of all staff.¹⁴⁴ Enforcement: F886, civil money penalties, withholding of payment for new admissions and termination under 42 C.F.R. Part 488. Status: in force July 1, 2021; revised inside the quarter; in force September 30, 2021. Functions: RS, IC, HR, WF, IN.

B-3. The federal visitation condition, QSO-20-39-NH as revised April 27, 2021

Issuer: CMS, enforcing 42 C.F.R. § 483.10(f)(4) and § 483.80 through the State survey agencies. Dates: September 17, 2020; revised March 10 and April 27, 2021; superseded November 12, 2021. Operative clause: facilities "should allow indoor visitation at all times and for all residents (regardless of vaccination status)," except for unvaccinated residents where the county positivity rate exceeded ten percent and fewer than seventy percent of residents were fully vaccinated, for residents with confirmed infection, and for residents in quarantine; visitors were to be screened and to wear source control; outbreak testing suspended visitation on affected units; compassionate care visits were to be permitted at all times.¹⁴⁵ Wherever county positivity exceeded ten percent and fewer than seventy percent of residents were vaccinated, the exception barred indoor visitation for unvaccinated residents; wherever a unit was under outbreak testing, it barred visitation on that unit; and the Delta wave of August and September 2021 is the circumstance in which those triggers operated. Enforcement: F563, F880, through the survey guidance the QSO memorandum itself carries. Status: in force July 1, 2021; in force September 30, 2021. Functions: VS, DN, RS.

B-4. The federal vaccine-offering and reporting conditions, 42 C.F.R. § 483.80(d)(3) and (g)

Issuer: the Secretary, by interim final rules CMS-5531-IFC and CMS-3414-IFC. Dates: May 8, 2020; May 13, 2021, effective May 21, 2021. Operative clauses: the facility must educate every resident and staff member about the vaccine, offer it, and document each offer, refusal and administration; must report to the National Healthcare Safety Network "no less than weekly," including resident and staff vaccination status; and must notify residents, representatives and families of confirmed and suspected cases "by 5 p.m. the next calendar day."¹⁴⁶ Enforcement: F884, F885, F887. Status: in force July 1 and September 30, 2021. Functions: IC, HR, OF.

B-5. The section 1135 waivers, Appendix K, CMS-1744-IFC and the renewed public health emergency

Issuer: the Secretary. Dates: waivers retroactive to March 1, 2020 and in force through the quarter, with the long-term care waivers narrowed May 10, 2021; the public health emergency renewed July 19, 2021; Appendix K approvals running to May 11, 2023. Operative provisions: the home health assessment, aide supervision and OASIS waivers; the hospice volunteer, aide supervision and face-to-face waivers; the nursing facility three-day stay, nurse aide training, physical environment and roommate waivers; the telecommunications provisions of CMS-1744-IFC; and every State's Appendix K remote assessments and retainer payments.¹⁴⁷ Status: in force July 1 and September 30, 2021. Functions: SN, HC, RS, HR, CB.

B-6. The federal conveyance order and the TSA directives

Issuer: the Centers for Disease Control and Prevention under 42 U.S.C. § 264 and 42 C.F.R. § 70.2; TSA. Dates: January 29, 2021, effective February 1, 2021 "until further notice"; TSA Security Directives SD 1582/84-21-01 (January 31, 2021; effective February 1 and expiring May 11, 2021) (Ex. FED-050), SD 1582/84-21-01A (announced April 30, 2021; effective May 12 and expiring September 13, 2021) (Ex. FED-051) and SD 1582/84-21-01B (announced August 20, 2021; effective September 14, 2021 and expiring January 18, 2022) (Ex. FED-052). Operative clause: persons must wear masks on all conveyances and at transportation hubs. Status: in force on every day of the quarter. Functions: TR, WF (Ex. FED-020; Ex. FED-051; Ex. FED-052).¹⁴⁸

B-7. California

Issuer: the State Public Health Officer under Health and Safety Code §§ 120125, 120140 and 131080; the Department of Public Health; the Los Angeles County, San Francisco, San Bernardino, San Diego and Sacramento County health officers. Dates and operative clauses: the Order of July 26, 2021 required skilled nursing facilities, "Adult and Senior Care Facilities" and hospices to verify the vaccination status of all workers and to test unvaccinated workers weekly (acute care and skilled nursing: twice weekly) and to require face coverings of them, the exposure-control conditions the Order attached to unvaccinated status, effective August 9 and August 23, 2021; the Order of August 5, 2021 required workers in skilled nursing, intermediate care, adult day health and hospice facilities to be fully vaccinated by September 30, 2021; the Order of September 28, 2021, effective immediately, required "[a]ll in-home direct care services workers, including registered home care aides and certified home health aides," every in-home supportive services and waiver personal care services provider, and "[a]ll hospice workers who are providing services in the home or in a licensed facility" to be fully vaccinated by November 30, 2021; the Department required masks of all persons in health care, long-term care and adult and senior care settings from July 28, 2021, an occupational-health and airborne-transmission control on every such workplace; All Facilities Letters 21-28 and 21-34 implemented the orders at licensed facilities and AFL 20-22.9 required visitor vaccination verification from August 12, 2021; the Los Angeles County Health Officer ordered on August 12, 2021 that every employer of health care and home care workers, including hospices, home health agencies and home care organizations, require vaccination by September 30, 2021, and its congregate health care facility order of April 24, 2020 and skilled nursing facility order of October 5, 2020 remained in force; San Francisco's Safer Return Together order required vaccination of personnel in specified health care and congregate settings from June 15 and was updated August 12; San Bernardino County's licensed-entity order of June 15, 2021 and San Diego County's quarantine order of July 22, 2021 governed; Sacramento County ordered indoor face coverings on July 29, 2021, and the health officers of the seven Bay Area counties and Berkeley issued indoor face-covering orders effective August 3, 2021, each an airborne-transmission control on indoor workplaces and public spaces, as their joint release of August 2, 2021 announced (Ex. MET-SAC-015; Ex. MET-SFO-071, the release, cited as the health officers' own account of their orders and not as an order).¹⁴⁹ Enforcement: misdemeanor under Health and Safety Code § 120295; licensure action. Status: in force September 30, 2021. Functions: HC, SN, RS, IC, HR, WF, VS (Ex. SEC-04-036; Ex. SEC-04-035; Ex. SEC-04-037; Ex. AGY-ST-HEALTH-SUBORDERS-110; Ex. AGY-ST-HEALTH-SUBORDERS-091; Ex. AGY-ST-HEALTH-SUBORDERS-092; Ex. SEC-04-068; Ex. MET-LA-023; Ex. MET-LA-066; Ex. MET-LA-024; Ex. MET-SFO-008; Ex. MET-SFO-011; Ex. MET-RIV-031; Ex. MET-SAN-024; Ex. MET-SAC-015; Ex. MET-SFO-071).

B-8. New Jersey

Issuer: the Governor under the Emergency Health Powers Act and the Disaster Control Act; the Department of Health. Dates and operative clauses: Executive Order 252 of August 6, 2021 required that "[c]overed 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," effective September 7, 2021, and defined the covered settings to include "long-term care facilities" and "pediatric and adult medical day care programs, and licensed home health agencies and registered health care service firms operating within the State"; Executive Directive 20-026, as revised January 6, 2021, continued the phased resumption regime in every long-term care facility until January 11, 2022; Executive Directive 21-001 fixed visitation protocols; Executive Directives 21-006 and 21-007 fixed the conditions on which PACE centers and adult medical day care facilities reopened; Executive Order 242 ¶ 13 kept face coverings in health care settings including home health, an occupational airborne-transmission control retained after the general rule ended; Executive Orders 251, 253 and 264 imposed face coverings and vaccination-or-testing in schools and child care; and P.L. 2021, c. 103 continued the Department's directives after the public health emergency ended June 4, 2021.¹⁵⁰ Enforcement: N.J.S.A. App. A:9-49 and 9-50 (disorderly persons offense; fines and imprisonment); licensure. Status: in force September 30, 2021. Functions: HC, SN, RS, VS, IC, HR, WF, DN (Ex. SEC-04-030; Ex. SEC-04-043; Ex. NJ-074; Ex. NJ-078; Ex. NJ-081; Ex. AGY-ST-HEALTH-SUBORDERS-059; Ex. AGY-ST-HEALTH-SUBORDERS-060; Ex. NJ-050; Ex. NJ-055; Ex. NJ-057; Ex. NJ-058; Ex. NJ-086).

B-9. New York

Issuer: the Department of Health and the Public Health and Health Planning Council under Public Health Law §§ 206, 2801 and Article 36; the Commissioner; the Governor; the New York City Department of Health and Mental Hygiene. Dates and operative clauses: 10 NYCRR Subpart 66-4 of July 30, 2021 required nursing homes and adult care facilities to offer and record COVID-19 vaccination of residents and personnel; 10 NYCRR § 2.61 of August 26, 2021 provided that "[c]overed entities shall continuously require personnel to be fully vaccinated against COVID-19," with covered entities defined to include hospitals, nursing homes, adult care facilities, "any agency established pursuant to Article 36 of the Public Health Law, including but not limited to certified home health agencies, long term home health care programs," licensed home care services agencies and hospices, with deadlines of September 27, 2021 for hospitals and nursing homes and October 7, 2021 for the rest; the Commissioner's determinations of August 27, 2021 required indoor masking under 10 NYCRR 2.60 and Subpart 66-3 kept face coverings in health care settings, occupational airborne-transmission controls on every covered workplace; Executive Order 4 of September 27, 2021 declared a statewide disaster emergency due to health care staffing shortages and suspended licensing rules to permit out-of-State and retired personnel to work; and the City's Commissioner ordered vaccination or testing of the staff of its public hospitals and clinics by August 2 and, from August 16, weekly PCR testing of unvaccinated staff and contractors at residential and congregate settings.¹⁵¹ Enforcement: Public Health Law § 12 (civil penalties); § 2.61 penalties; licensure. Status: in force September 30, 2021. Functions: HC, SN, RS, IC, HR, WF, VS (Ex. NY-135; Ex. SEC-04-058; Ex. NY-073; Ex. NY-074; Ex. NY-133; Ex. NY-134; Ex. NY-070; Ex. MET-NYC-035; Ex. MET-NYC-036).

B-10. Connecticut

Issuer: the Governor under Conn. Gen. Stat. §§ 28-9 and 19a-131a; the Department of Public Health. Dates and operative clauses: Executive Order 13B of August 6, 2021 required long-term care facility staff to be vaccinated by September 7, 2021, enforced by civil penalty under § 19a-525; Executive Order 13D of August 19, 2021 required State employees and school and child-care workers to be vaccinated or tested weekly from September 27, 2021, a workforce order on the households of this industry's aides; Executive Order 13F of September 3, 2021 defined "long-term care facility" to include "a nursing home, residential care home, assisted living services agency, managed residential community," defined "Covered LTC worker" to include contractors and volunteers, and fixed September 27, 2021 as the date; the Department ordered weekly testing of unvaccinated nursing home staff on August 11, 2021.¹⁵² Status: in force September 30, 2021. Functions: RS, IC, HR, WF, HC (assisted living services agencies) (Ex. SEC-04-031; Ex. SEC-04-052; Ex. SEC-04-051; Ex. CT-053).

B-11. Washington

Issuer: the Governor under RCW 43.06.220; the Secretary of Health under RCW 43.70.130; the King County Local Health Officer. Dates and operative clauses: Proclamation 21-14 of August 9, 2021 required health care providers and long-term care workers to be fully vaccinated by October 18, 2021 as a condition of employment, reaching every residential long-term care setting and every contractor and volunteer, while providing that "'Health Care Provider' does not include ... Individual providers, as defined in RCW 74.39A.240; Providers of personal care in a person's home, such as home care, home health or hospice care"; Proclamation 21-14.1 of August 20 and 21-14.2 of September 27, 2021 amended it; Proclamation 20-66.5 continued the Safe Start long-term care rules through the emergency; Orders of the Secretary of Health 20-03.3, 20-03.4 and 20-03.5 of June 29, August 19 and September 13, 2021 required face coverings in health care and congregate settings and then indoors generally, airborne-transmission controls on every covered workplace and public space; Proclamations 20-25.14, 20-25.15 and 20-25.17 continued the emergency framework; Proclamation 20-09.4 of July 30, 2021 conditioned in-person K-12 instruction on the Department of Health's masking and quarantine requirements (Ex. WA-075) and Proclamation 21-14.1 reached every school and child-care worker (Ex. WA-079); Proclamation 21-15 of September 3, 2021 waived and suspended, until October 2, 2021 and as extended, the statutory and regulatory provisions that prevented, hindered or delayed the transfer or discharge of nursing home residents to other long-term care facilities during the Delta surge (Ex. WA-083); King County's isolation and quarantine orders stood and its masking orders of September 2, 2021 placed the same control on the county's indoor spaces; and the City of Seattle required vaccination of its employees by Mayoral Directive of August 9, 2021.¹⁵³ Enforcement: RCW 43.06.220(5) (gross misdemeanor); licensure. Status: in force September 30, 2021. Functions: RS, IN, IC, HR, WF, VS, TR (Ex. SEC-04-032; Ex. SEC-04-061; Ex. WA-087; Ex. WA-057; Ex. WA-070; Ex. WA-078; Ex. WA-084; Ex. WA-072; Ex. WA-080; Ex. WA-085; Ex. WA-075; Ex. WA-079; Ex. WA-083; Ex. MET-SEA-050; Ex. MET-SEA-002; Ex. MET-SEA-018).

B-12. Illinois

Issuer: the Governor under the Illinois Emergency Management Agency Act; the Chicago Department of Public Health. Dates and operative clauses: Executive Order 2021-20 of August 26, 2021 required masks in health care settings from August 30 and required health care workers, including at hospices and long-term care facilities, to be vaccinated or tested; Executive Order 2021-22 of September 3, 2021 fixed September 19, 2021 for the first dose and weekly testing otherwise; Executive Order 2021-23 of September 17, 2021 reissued the requirements; the gubernatorial disaster proclamation was renewed every thirty days without interruption; Executive Order 2020-09's telehealth provisions were reissued monthly; and Chicago's Fourth Amended Order 2020-2 governed hospitals, visitors and every-shift screening.¹⁵⁴ Enforcement: the Act's penalties; licensure. Status: in force September 30, 2021. Functions: HC, SN, RS, IC, HR, WF (Ex. SEC-04-033; Ex. SEC-04-034; Ex. IL-044; Ex. IL-040; Ex. IL-001; Ex. IL-068; Ex. MET-CHI-028).

B-13. Pennsylvania and Philadelphia

Issuer: the Philadelphia Board of Health under the Home Rule Charter and the Philadelphia Code; the Department of Public Health; the Pennsylvania Department of Health under the Disease Prevention and Control Law. Dates and operative clauses: the Board's Emergency Regulation, adopted August 12 and effective August 16, 2021, required health care institutions to require vaccination or, in the interim, testing of their workers and barred employment of unvaccinated workers from October 15, 2021, with inspection "as a condition of operation"; the Department's Health Alert of August 25, 2021 stated that home health care workers, home health aides and home and community based care attendants are covered and that "[t]he employing agencies of such individuals are considered Healthcare Institutions under the Regulation"; the City's Full Reopening Order kept its face-covering and exposure-control conditions in health care and congregate settings through the quarter; the Commonwealth's order of May 26, 2021 required weekly reporting by skilled nursing facilities; its order of November 23, 2020 reducing elective procedures ran to August 23, 2021; its Health Alerts of September 16 and 21, 2021 fixed work restrictions and infection-prevention rules for health care personnel; and Act 73 of September 30, 2021 continued the regulatory flexibilities.¹⁵⁵ Status: in force September 30, 2021. Functions: HC, SN, RS, IC, HR, WF, IN (Ex. SEC-04-045; Ex. SEC-04-046; Ex. MET-PHL-021; Ex. MET-PHL-022; Ex. MET-PHL-018; Ex. PA-038; Ex. PA-025; Ex. PA-047; Ex. PA-048; Ex. PA-043).

B-14. Massachusetts

Issuer: the Commissioner of Public Health under the Governor's declaration of May 28, 2021 under General Laws c. 17, § 2A; the Executive Office of Health and Human Services. Dates and operative clauses: Public Health Emergency Order No. 2021-4 of August 4, 2021 required nursing home personnel to be fully vaccinated by October 10, 2021; 101 CMR 23.00 of August 13, 2021 required vaccination of staff at certain agency facilities; 105 CMR 159.000 of September 8, 2021 required vaccination of certain staff providing home care services; the Commissioner's order of May 28, 2021 required face coverings in health care settings including home health, an occupational airborne-transmission control retained after the general rule ended; the long-term care control order of November 5, 2020, reissued June 14, 2021, continued; and the Commissioner's orders permitted retail pharmacies to vaccinate at long-term care facilities and facilities to verify staff vaccination status in the immunization registry.¹⁵⁶ Status: in force September 30, 2021. Functions: HC, RS, IC, HR, WF (Ex. MA-067; Ex. MA-070; Ex. MA-069; Ex. MA-050; Ex. MA-049; Ex. MA-054; Ex. MA-064; Ex. AGY-ST-HEALTH-SUBORDERS-116; Ex. AGY-ST-HEALTH-SUBORDERS-119).

B-15. Maryland

Issuer: the Secretary of Health under Health-General § 18-903 and the Governor's orders. Dates and operative clauses: the Amended Directives and Orders Regarding Vaccination Matters of 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) required their staff to show proof of a first dose by September 1, 2021 or submit to regular testing and face coverings, the exposure-control conditions attached to unvaccinated status; the Amended Directives and Orders Regarding Nursing Home Matters of August 18 and September 8, 2021 fixed testing, cohorting and staffing conditions; the Amended Directive and Order Regarding Various Healthcare Matters of June 15, 2021 continued to December 31, 2021; the Governor's nursing home order of April 29, 2020 ran to August 15, 2021; Baltimore's Health Commissioner ordered face coverings on August 10, 2021, an airborne-transmission control on indoor workplaces and public spaces in the city; and the Court of Appeals ordered courthouse health measures and judiciary vaccination on August 6 and 20, 2021.¹⁵⁷ Status: in force September 30, 2021, except the Governor's nursing home order, in force July 1 to August 15, 2021 (Q&A-22). Functions: RS, IC, HR, WF, VS (Ex. MD-057; Ex. MD-058; Ex. MD-060; Ex. MD-059; Ex. MD-061; Ex. MD-055; Ex. MD-043; Ex. MET-BAL-017; Ex. MD-090; Ex. MD-091; Ex. MD-092).

B-16. Rhode Island, Maine and Oregon

Rhode Island's Department of Health adopted 216-RICR-20-15-8 on August 17, 2021 (Ex. RI-072), requiring every worker in a licensed health care facility to be vaccinated and providing that from October 1, 2021 facilities shall exclude unvaccinated workers; its Safe Activities regulation as amended June 18, 2021 governed every covered entity's screening, masking and signage duties until it expired August 31, 2021 (Ex. RI-071), and its hospital and testing reporting order of April 7, 2020 ran until July 6, 2021, when Executive Order 21-76 terminated it (Ex. RI-011; Ex. RI-047).¹⁵⁸ Maine's Department of Health and Human Services adopted the emergency rule of August 12, 2021 (Ex. ME-061) adding COVID-19 to the immunizations required of health care workers, including at home health agencies, effective October 1 and enforced from October 29, 2021, a rule the First Circuit declined to enjoin on October 19, 2021; Executive Order 40 of June 30, 2021 scheduled the expiration of the surviving orders in tranches to August 30, August 31 and September 30, 2021 and beyond, so that named orders remained in force on every day of the quarter (Ex. ME-060).¹⁵⁹ Oregon's Health Authority adopted OAR 333-019-1010 on August 5, 2021 (vaccination or weekly testing of health care providers and staff) (Ex. OR-046) and replaced it on August 25, 2021 with a vaccination requirement effective October 18, 2021 (Ex. OR-051); OAR 333-019-1025 of August 11, 2021 required face coverings indoors regardless of vaccination status, an airborne-transmission control on every indoor workplace and public space (Ex. OR-048); and Oregon OSHA renewed the workplace face-covering rule of its COVID-19 standard on August 13, 2021 (Ex. SEC-10-056) and adopted medical removal benefits on September 14, 2021 (Ex. AGY-ST-LABOR-WORKPLACE-021).¹⁶⁰ Status: the Rhode Island rule of August 17, the Maine rule and the Oregon rules in force September 30, 2021; Ex. RI-071 in force July 1 to August 31, 2021 and Ex. RI-011 July 1 to 6, 2021 (Q&A-22). Functions: HC, RS, IC, HR, WF (Ex. RI-072; Ex. RI-071; Ex. RI-011; Ex. RI-047; Ex. ME-061; Ex. ME-060; Ex. ME-005; Ex. ME-014; Ex. OR-046; Ex. OR-051; Ex. OR-048; Ex. SEC-10-056; Ex. AGY-ST-LABOR-WORKPLACE-021).

B-17. Colorado, Delaware and the District of Columbia

Colorado's Board of Health adopted the emergency rule at 6 CCR 1011-1, Chapter 2, Part 12 on August 30, 2021, requiring vaccination of the employees, direct contractors and support staff of licensed health care facilities by September 30, 2021; Public Health Order 20-20 continued in its Seventh and Eighth Amended forms; Public Health Order 20-38 kept face coverings in health care and congregate care settings as one of the exposure controls it carried; and Denver ordered vaccination of the personnel of care facilities and home care entities by September 30, 2021.¹⁶¹ Delaware's Secretary of Health and Social Services amended by emergency order on September 10, 2021, effective September 30, 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, and its June 2021 infection-control orders for hospitals, nursing facilities and aide-only home health agencies continued.¹⁶² The District's Mayor's Order 2021-097 of July 29, 2021 resumed indoor face-covering requirements, an airborne-transmission control on every indoor workplace and public space, and delegated authority to the Department of Health (Ex. DC-057); Mayor's Order 2021-099 of August 10, 2021 required District Government employees, contractors, interns and grantees to certify vaccination by September 19, 2021 (Ex. SEC-04-059; Ex. DC-076); the Mayor and the Department of Health announced on August 16, 2021 the requirement that every health professional in the District, including personal care aides, receive a first dose by September 30, 2021 (Ex. DC-075); and the public emergency was extended to October 8, 2021 (Ex. DC-021).¹⁶³ Status: in force September 30, 2021. Functions: HC, RS, IC, HR, WF (Ex. CO-055; Ex. CO-042; Ex. CO-092; Ex. CO-041; Ex. CO-053; Ex. CO-091; Ex. MET-DEN-023; Ex. MET-DEN-025; Ex. DE-046; Ex. DE-047; Ex. DE-055; Ex. DE-061; Ex. DE-062; Ex. DE-063; Ex. DC-057; Ex. SEC-04-059; Ex. DC-075; Ex. DC-076; Ex. DC-021).

B-18. The residential-care, testing and health-care face-covering orders of the other States

The face-covering rules named in this subpart are the occupational-health and airborne-transmission controls their issuers kept or restored after the general orders on the public ended, each one control within the exposure-control regime its instrument carried, and they are cited as such. Michigan's residential care order of May 21, 2021 (visitation, testing, personal protective equipment, isolation and reporting); Missouri's twenty-four-hour case-reporting order of May 18, 2020 on long-term care, assisted living and residential care facilities; Louisiana's nursing home visitation and adult residential care order of September 18, 2020, its indoor face-covering proclamations of August 2, August 31 and September 28, 2021, and its surge-transfer emergency rule of August 12, 2021; North Carolina's Executive Order 130 as extended by Executive Order 211 to August 8, 2021, with the Secretarial Orders on long-term care visitation and testing it carried, and Executive Order 220 keeping face coverings in health care settings to July 30, 2021; West Virginia's Executive Order 13-21 continuing twice-weekly testing; Kansas's adult care home testing order of June 18, 2021 and its travel quarantine list; Idaho's Stage 4 Stay Healthy Guidelines of May 11, 2021, whose long-term care face-covering rule remained mandatory, the Department's visitation guidelines of June 9, 2021 administered under them, and its activation of crisis standards of care on September 7, 2021; Arkansas's long-term care directive of December 23, 2020 and its emergency proclamation of July 29, 2021; Utah's Test to Stay statute, S.B. 195, H.B. 1007 and the Judicial Council's courthouse face-covering order of July 28, 2021, under the Department of Health's continuing emergency declaration of October 14, 2020; Ohio's amended testing orders of May 4, 2021, Columbus's order of September 10, 2021 requiring surgical masks of long-term care workers, and Cuyahoga County's orders of June 28 and August 3, 2021; Indiana's communicable-disease control measures of July 19, 2021 and its Executive Orders 21-17, 21-19 and 21-24; Nevada's Directive 047 of July 27, 2021 requiring face coverings indoors, its Directive 046 of July 20, 2021 continuing the health-care licensing waivers, and its adoption of the federal standard; New Mexico's orders of June 30, July 30, August 17 and September 15, 2021; Hawaii's proclamation of August 5, which with Executive Order 21-05 of August 10 reimposed statewide gathering caps of ten indoors and twenty-five outdoors and fifty percent seated capacity at restaurants, bars and gyms (Ex. HI-025), Executive Order 21-06 of September 1 and Honolulu's Emergency Orders 2021-09 through 2021-12; Alaska's emergency order of April 30, 2021 and its crisis-standards addendum of September 21, 2021; Alabama's emergency proclamation of August 13, 2021 with its health-care workforce provisions; Tennessee's Executive Order 83 of August 6, 2021, and Executive Order 88, issued September 30, 2021 and effective October 5, 2021, extending it to November 5; Kentucky's Executive Order 2021-585 of August 10, 2021 (to September 7); Vermont's Executive Order 06-21; Iowa's disaster proclamations of July 23, August 19 and September 17, 2021; Georgia's Executive Orders of June 30 through September 20, 2021 and its Insurance Commissioner's directives of August 16 and 17, 2021 suspending utilization review and preauthorization requirements for post-acute placements; Missouri's Executive Order 21-09 of August 27, 2021; Nebraska's Executive Order 21-12 of August 26, 2021; Texas's Executive Order GA-38 of July 29, 2021, its disaster renewal of August 29, 2021, its reporting order GA-10, and Dallas County's continuing long-term care requirements and face-covering orders of August 11 and 16, 2021; Florida's Executive Order 21-175 and Department of Health emergency rules of August 6 and September 22, 2021; Puerto Rico's Executive Order OE-2021-062; and the Mescalero Apache Tribe's Executive Order 21-05 of August 19, 2021.¹⁶⁴ Each was in force on September 30, 2021 unless a date above says otherwise (Ex. MI-072; Ex. MO-009; Ex. LA-050; Ex. LA-036; Ex. LA-056; Ex. NC-007; Ex. NC-065; Ex. NC-073; Ex. NC-030; Ex. WV-064; Ex. KS-052; Ex. ID-013; Ex. ID-051; Ex. ID-064; Ex. AR-068; Ex. UT-025; Ex. UT-046; Ex. UT-041; Ex. UT-045; Ex. UT-051; Ex. OH-049; Ex. OH-071; Ex. MET-CMH-048; Ex. IN-092; Ex. NV-041; Ex. NV-040; Ex. NM-060; Ex. NM-063; Ex. NM-067; Ex. NM-070; Ex. HI-024; Ex. HI-025; Ex. HI-026; Ex. MET-HNL-032; Ex. MET-HNL-035; Ex. AK-030; Ex. AK-031; Ex. AL-052; Ex. TN-035; Ex. KY-052; Ex. VT-044; Ex. IA-039; Ex. GA-041; Ex. MO-020; Ex. NE-068; Ex. TX-036; Ex. TX-005; Ex. MET-DFW-024; Ex. FL-063; Ex. AGY-TERRITORIES-033; Ex. AGY-TRIBAL-040). The statutes and executive orders of Montana, Florida, Iowa, Arkansas, North Dakota, Oklahoma, Alabama, Arizona, Texas and South Carolina that in 2021 barred or limited vaccination-status requirements, vaccine documentation and local face-covering mandates were orders too; they limited what this industry could require of its workers, residents and visitors, and they collided inside the quarter with the federal conditions, as Montana's Department of Public Health and Human Services acknowledged on July 28, 2021 in construing the exemption of House Bill 702 for licensed facilities.¹⁶⁵ Functions: RS, IC, VS, HR, WF, HC.

C. The functions

HC, in-home visits

Every aide's visit in the quarter began with the screening the OSHA standard required of every non-employee at the point of entry and was performed under the standard's source-control, distancing, screening and written-plan requirements, the occupational-health and airborne-transmission controls it imposed on every home visit; in New Jersey, New York, California, Massachusetts, Delaware, Philadelphia, Los Angeles County, Denver and Maine the aide's employment was, from the dates above, conditioned on vaccination or testing; in New Jersey, Massachusetts, New York, California, Washington, Oregon, Illinois and Louisiana the aide worked under State face-covering orders, the occupational-health and airborne-transmission controls those States kept in force after their general mask orders on the public had ended. The function was performed, where it was performed, in a manner the orders fixed, and it was delayed or interrupted wherever a worker was removed under the standard, excluded under a testing order or lost to a vaccination deadline.¹⁶⁶

SN, skilled nursing and assessments

The waivers and CMS-1744-IFC continued to govern the initial assessment, aide supervision and telecommunications rules; the standard's screening and removal provisions governed every nurse; the hospice face-to-face encounter remained by telehealth where the waiver was used; and New York's Executive Order 4 of September 27 recognized a staffing emergency severe enough to suspend licensing rules.¹⁶⁷

RS, residential care

Every nursing facility tested residents and staff on the federal schedule, revised September 10; quarantined unvaccinated new admissions; cohorted; excluded positive and symptomatic staff; in Michigan, Louisiana, Maryland, New Jersey, Massachusetts, Colorado, Ohio, Connecticut, Kansas, West Virginia, Washington, Idaho and Arkansas ran under a State residential-care regime in force on every day of the quarter; in Missouri reported every case within twenty-four hours; and in Washington transferred and discharged residents from September 3 under Proclamation 21-15.¹⁶⁸

VS, visitation

The April 27 rule barred indoor visitation for unvaccinated residents in every county above ten percent positivity with less than seventy percent of residents vaccinated, for every resident with a confirmed infection and for every resident in quarantine, and suspended visitation on units under outbreak testing; the ten percent and seventy percent triggers operated wherever the Delta wave of August and September carried county positivity above the threshold; California required visitor vaccination verification from August 12; Michigan, Louisiana, Maryland, New Jersey and Dallas County fixed visitation by order.¹⁶⁹

IN, intake and referrals

Pennsylvania's elective-procedure reduction ran to August 23; Louisiana's surge-transfer rule of August 12, Washington's transfer and discharge proclamation of September 3 and the crisis-standards activations of Idaho and Alaska fixed hospital discharge patterns; New Jersey's Phase 0 barred admissions at facilities in outbreak; the standard's screening and the testing condition delayed every admission.¹⁷⁰

IC, infection control and staff mandates

The quarter's compelled operations were the written plan, hazard assessment, screening, masking, distancing, barriers, ventilation review, cleaning, employee health screening, removal, medical removal benefits, log and reporting of the standard; the testing, vaccine-offering and reporting conditions of participation; and the vaccination or testing mandates of the fifteen jurisdictions and their cities.¹⁷¹

TR, transport

The conveyance order and the TSA directives governed every transit trip and facility van on every day.¹⁷²

DN, dining and activities

The April 27 rule's outbreak and quarantine provisions, the State residential-care orders and the health-care face-covering and exposure-control orders governed communal dining and group activities; where a unit was under outbreak testing, both were suspended on that unit.¹⁷³

HR, hiring and credentialing

The vaccination and testing mandates changed whom an employer could hire and retain from their effective dates; the vaccine documentation condition of § 483.80(d)(3) and the standard's log and removal provisions changed onboarding; New York's Executive Order 4 and Nebraska's Executive Order 21-12 changed licensure; and the State statutes barring vaccination-status requirements constrained the same decisions in the other direction.¹⁷⁴

OF, offices and administration

The weekly National Healthcare Safety Network reporting, the vaccination-status reporting from May 21, the COVID-19 log and plan of the standard, Pennsylvania's weekly reports, Texas's daily reports and the documentation the vaccination mandates required were compelled administrative operations of the quarter.¹⁷⁵

WF, workforce availability

Employees were removed from work under the standard's health screening and medical removal provisions, excluded under the testing condition, quarantined under the State and county isolation and quarantine orders, and, from the mandates' dates, excluded or lost for vaccination status; their children were under school face-covering and quarantine orders in the States and counties named above.¹⁷⁶

CB, patients and payers

Patients and residents were tested, quarantined and screened by order; their visitors were screened, masked and, in California, checked for vaccination; the payers continued the waivers, Appendix K and the interim final rules; and the public health emergency was renewed July 19, 2021 for the whole quarter.¹⁷⁷

D. Continuing suspension

The clause asks whether the operation "is fully or partially suspended during the calendar quarter due to orders." The test is the state of the operation within the quarter and its cause; the date the order issued is irrelevant. Q&A-22 confirms that an order in force for part of a quarter qualifies the employer for that quarter.¹⁷⁸

The arithmetic of this quarter

Of the instruments in B-1 through B-6, every one was in force on every one of the quarter's ninety-two days. Of the State and city instruments in B-7 through B-18, the residential-care orders of Michigan, Louisiana, North Carolina, West Virginia, Kansas, Massachusetts, Idaho, Arkansas, Maryland, New Jersey, Ohio, Washington and Colorado, and Missouri's case-reporting order, were in force on every day; the vaccination and testing mandates issued between July 26 and September 28 and were in force from issuance, because an order that fixes a deadline inside or shortly after the quarter compels the employer's verification, policy, scheduling and hiring decisions from the day it issues; and the health-care face-covering orders, the airborne-transmission controls named in B-7 through B-18, were in force from their dates. No finding for this quarter depends on an order that had ended before July 1, 2021, and where an order compelled the dismantling of a function before the quarter, the period its restoration took is stated in the interconnected-economy section from the orders' own phase steps.

The four pathways

The quarter qualifies on each of four independent grounds. First, the text: "during the calendar quarter" modifies "suspended," not "orders," and the suspension an order caused continues because of that order through the period its compelled dismantling took to reverse; Tri-State Memorial Hospital v. United States (E.D. Wash. May 28, 2026) (Tri-State) defines a suspension to include a "delay" and "due to" as but-for causation, and Q&A-22 and the transition sentence of Q&A-16 are the Service's own recognition of the same rule. Second, the orders actually in force in the quarter, B-1 through B-18, each with its status on July 1 and September 30, 2021. Third, the counterparty orders in force in the quarter: the hospital procedure, transfer and crisis-standards orders, the school orders and the conveyance order. Fourth, the restoration arithmetic from the orders' own phase steps and sunset dates, which the interconnected-economy section states function by function, together with the rule and the reasons.

E. The Service's grounds, answered for this quarter

No orders in effect

The instruments set out in B-1 through B-18 were in effect on the days stated for each of them.

Essential and open

The essential designation is why B-1 through B-4 imposed conditions rather than closing the buildings; Q&A-11's first sentence and Q&A-17's Example 4 dispose of the ground.¹⁷⁹

Guidance, not orders

B-1, B-2 and B-4 are regulations published in the Federal Register and enforced by penalty; the State and local instruments in B-7 through B-18 are executive orders, health officer orders, emergency rules and regulations carrying criminal, civil and licensure sanctions, and where a State administered its residential-care conditions through guidelines issued under a standing order, the order is the command cited and the guideline is cited as its administration.

Orders lifted

The general orders were lifted; these were not, and every one is cited with its status on July 1 and September 30, 2021.

Masks and gloves

The compelled changes of this quarter were vaccination, testing, exclusion, screening, medical removal, written plans and reporting, with universal face coverings one compelled modification within that workplace infection-prevention and exposure-control regime; each was a change in the manner of operation that an order required, Q&A-18's own first paragraph lists face-covering requirements among the modifications "required by a governmental order as a condition of reopening," and the United States has represented that "employees having to wear face masks may impact business operations."¹⁸⁰

Not more than nominal

The figure is a safe harbor by the United States' account; the termination of the visitation function for unvaccinated residents in high-positivity counties, the exclusion of every untested or removed worker and the medical removal regime exceed it many times over on any hours measure.

Voluntary

Nothing in B-1 through B-18 was optional; each carried a sanction.

F. The finding

What this analysis does not claim was in force

This analysis does not claim for this quarter any stay-at-home order on the public, because none was in force; the blanket visitation restriction of March 13, 2020, superseded September 17, 2020; the reopening framework of May 18, 2020, expired March 10, 2021; New York's Executive Order 202 series, rescinded by Executive Order 210 of June 24, 2021, effective June 25, 2021; California's Executive Order N-33-20, rescinded June 15, 2021; Rhode Island's Executive Order 20-17, for any day after July 6, 2021, and its Safe Activities regulation, for any day after August 31, 2021; Maryland's Governor's nursing home order of April 29, 2020, rescinded August 15, 2021, for any day after that date; Ohio's access orders, rescinded June 18, 2021; Arizona's Executive Order 2020-22, rescinded April 1, 2021; North Dakota's visitation orders, rescinded March 12, 2021; Florida's Division of Emergency Management visitation orders, rescinded March 22, 2021; Florida's Agency for Health Care Administration emergency rules of February 2, 2021, for any day after their ninety-day term; the Minneapolis, Philadelphia and Connecticut long-term care orders of 2020, rescinded in 2020; Pennsylvania's elective-procedure reduction, for any day after August 23, 2021; Kentucky's Executive Order 2021-585, for any day after September 7, 2021; Colorado's Seventh Amended Public Health Order 20-38, issued September 30 and effective October 1, 2021; the Supreme Court of Texas's Forty-Third Emergency Order, issued September 21 and effective October 1, 2021; Hawaii's Delta Response Proclamation of October 1, 2021 (Ex. HI-029), which restated Executive Orders 21-05 and 21-06 and is not claimed for any day of the quarter; the Department of Homeland Security's land-border notifications of October 21, 2021; the vaccination deadlines of Oregon (October 18), Rhode Island (October 1), Maine (October 1 and 29), Massachusetts (October 10), Washington (October 18), Philadelphia's employment bar (October 15) and California's home care order (November 30), which fell after the quarter and are cited only because the orders fixing them were in force inside it; CMS's announcements of August 18 and September 9, 2021, which were not orders; the staff vaccination interim final rule of November 5, 2021, the OSHA vaccination-or-testing standard of November 5, 2021 and the November 12, 2021 visitation revision, which post-date the quarter; and the Kaiser Family Foundation's tables, which are cited for what they record and not as orders.¹⁸¹