The interconnected economy and the broken leg
A hospital discharges to nursing homes, buys in a market the Federal Government allocated, staffs through consulates, licensing boards and interstate travel, sends its workers home through school and child-care systems, moves them through transit, and admits patients whom other orders confined. An order on any of those is an order limiting commerce, travel or group meetings, and an operation of this industry delayed, interrupted or terminated because of it is suspended due to it. The orders of 2020 and the first half of 2021 compelled this industry to dismantle its elective, procedural, visitation and staffing operations; the orders' own reopening steps show that the restoration ran into and through the third quarter of 2021; and the clause's grammar, Tri-State's definition and the Notice's own words make the continuing suspension a suspension "during the calendar quarter."
The mechanisms
Six mechanisms carried orders addressed to others into this industry's operation. Supply chain and borders: the Defense Production Act delegations, the scarce-materials designation, FEMA's allocation rule and the land-border notifications fixed the market for respirators, masks, gloves, gowns and drugs from March 2020 to November 2021, and the entry proclamations and Title 42 orders fixed who could cross the border to work or to be treated (Ex. FED-070; Ex. FED-074; Ex. SEC-01-013; Ex. FED-078; Ex. ECO-A-071; Ex. FED-233; Ex. FED-207; Ex. FED-038).126 Workforce, schools and child care: the school closures of the spring of 2020, the FFCRA leave mandate through December 31, 2020, the State paid-leave laws, the quarantine and isolation orders and the school infection-prevention orders of the autumn of 2021, universal masking among their controls, removed the hospital's staff from its buildings by law or governed the children on whom their attendance depended (Ex. FED-170; Ex. ECO-B-002; Ex. AGY-ST-LABOR-WORKPLACE-003; Ex. MET-SAN-024; Ex. MET-DEN-024).127 Travel and gatherings: the interstate traveler quarantines of New York, Connecticut, Hawaii, Chicago and others confined the travel nurses and locum physicians on whom hospitals depended in every surge, and the gathering bans ended the industry's events, the congresses, association meetings and recurring gatherings recorded in the Library's meetings records for this industry (Ex. HI-003; Ex. ECO-C-031; Ex. NY-005).128 Courts and public offices: the court closures of 2020 and 2021 reached the hospital's collections, guardianship, commitment and licensing work. Transit: the transit authorities' service cuts, capacity caps and face-covering and exposure-control rules and, from February 1, 2021, the federal conveyance order conditioned every commute (Ex. FED-020; Ex. MET-DEN-045; Ex. MET-MSP-061; Ex. MET-STL-041).129 Health care as counterparty: the orders on nursing homes, home health agencies, physician practices, dental practices and laboratories were orders on the hospital's own referral, discharge and diagnostic network, and the nursing-home rules of CMS and the States governed every discharge that could not go home on every day of the period (Ex. FED-156; Ex. FED-094; Ex. FED-098; Ex. NJ-064; Ex. LA-050; Ex. AR-068; Ex. OH-049).130
Counterparty orders as orders
The statute's object is "commerce, travel, or group meetings," not the employer's premises. The Notice's Q&A-12 applies the clause exactly so, making an employer eligible "because its operations have been suspended due to the governmental order that suspended operations of its supplier," and the United States told the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party."131 The supplier of a hospital's protective equipment was a market the Federal Government allocated by rule; the supplier of its post-acute beds was a nursing home whose admissions CMS and the State governed; the supplier of its travel nurses was an interstate labor market that quarantine orders confined; the supplier of its foreign-trained physicians was a consulate that did not issue visas and a border the proclamations closed. Each was closed or conditioned by order, and the operations that depended on it were suspended in part because of the order in the only sense the statute uses.
The textual point
The clause reads "is fully or partially suspended during the calendar quarter due to orders." The phrase "during the calendar quarter" modifies "suspended"; it asks whether the suspension existed at any time in the quarter, not whether an order was issued in or addressed to the quarter. Congress did not write "orders in effect during the calendar quarter."132 Tri-State holds that a suspension includes a "delay" and that causation is but-for.133 The Notice recognizes both propositions: Q&A-22 makes an employer whose suspension ends in the middle of a quarter eligible for the whole quarter, and Q&A-16 treats the time an employer needs to move between modes of operation as part of the suspension where the delay exceeds two weeks.134 A surgical service ordered to zero on March 22, 2020, permitted to resume on April 22 only on a twenty-five percent reserve, held to a fifteen percent reserve from May 1 and a ten percent reserve from September 17, ordered to zero again in June and held under a census trigger until March 10, 2021 was delayed by those orders on every day between, and the delay did not end on the day the last trigger lifted.
The restoration arithmetic for this industry
What the orders compelled this industry to dismantle is recorded in the orders themselves, and so are the steps by which they permitted it to be rebuilt. Elective and non-urgent procedures: Texas ordered them postponed on March 22, 2020, permitted them from April 22 only for hospitals certifying a twenty-five percent reserve and protective-equipment self-sufficiency, required a fifteen percent reserve from May 1 and a ten percent reserve from September 17, 2020, re-postponed them in four counties from June 26 and in more than one hundred from June 30, and ran a regional trigger from September 17, 2020 until March 10, 2021 (Ex. TX-004; Ex. TX-009; Ex. TX-012; Ex. TX-020; Ex. TX-024; Ex. SEC-01-050); New York cancelled them on March 23, 2020, permitted resumption county by county from April 29 on capacity and testing conditions, and held New York City and Long Island hospitals under the cancellation into June (Ex. NY-005; Ex. NY-019); New Jersey suspended them from March 27 to May 26, 2020 and governed them thereafter by directives continued by statute to January 11, 2022 (Ex. NJ-006; Ex. NJ-016; Ex. NJ-084; Ex. NJ-085; Ex. NJ-053); Kentucky ceased them on March 18, 2020, permitted outpatient procedures from May 6 on a thirty percent bed reserve, inpatient procedures at "50% of pre-COVID-19 shutdown volume" from May 13, and full volume from May 27, 2020 (Ex. KY-009; Ex. KY-015; Ex. KY-029); Washington prohibited them from March 19 to May 18, 2020, conditioned them from May 18, and replaced the conditions on December 3, 2020 with Proclamation 20-24.2, in force through September 30, 2021 (Ex. WA-015; Ex. WA-032; Ex. WA-049); Pennsylvania prohibited them from March 19, 2020, permitted them from April 27, and cut them by half on regional notice from November 23, 2020 to August 23, 2021 (Ex. PA-004; Ex. PA-025; Ex. PA-101); Minnesota postponed them from March 23 to May 10, 2020 and conditioned them to May 27, 2021 (Ex. SEC-01-066; Ex. SEC-01-067); Oregon cancelled them from March 23 to May 1, 2020 and conditioned them to June 30, 2021 (Ex. SEC-01-068; Ex. SEC-01-069); Massachusetts postponed them from March 18, 2020, permitted attested urgent procedures from May 18, ordered their scheduling from June 24 and again from December 11, 2020 to March 1, 2021 (Ex. SEC-01-071; Ex. MA-060; Ex. MA-061; Ex. MA-065; Ex. MA-066); California delayed them by surge order from December 17, 2020 to February 5, 2021 (Ex. CA-026); Iowa prohibited them from March 27 to April 27, 2020, conditioned them on a thirty percent reserve, limited them again from November 17, 2020 and ended the limits on February 7, 2021 (Ex. IA-011; Ex. IA-032; Ex. IA-034); Indiana postponed them from April 1 to April 27, 2020 and again from December 16, 2020 to January 3, 2021, with reprioritization under capacity criteria to January 31, 2021 (Ex. IN-011; Ex. IN-022; Ex. IN-048; Ex. IN-051); Arizona delayed them from March 21, 2020 and permitted them from May 1 only by exemption on an eighty percent occupancy ceiling until April 1, 2021 (Ex. AZ-004; Ex. AZ-015); Ohio stopped them from March 18, 2020, permitted them without an overnight stay from May 1 and conditioned them to April 5, 2021 (Ex. OH-007; Ex. OH-027); Maryland ceased them from March 24, 2020, permitted them from May 7 on conditions and restated the conditions to December 31, 2021 (Ex. MD-040; Ex. MD-044; MDH Order 2021-06-15-03). Visitation: barred in March 2020 at hospitals in Michigan, Massachusetts, Alabama and Alaska and at long-term care facilities in New Hampshire, New Jersey and every other State, restored by phased directive from June 2020 through 2021, and conditioned again on vaccination or a negative test in California from August 11, 2021 (Ex. MI-003; Ex. MA-057; Ex. AL-005; Ex. AK-007; Ex. NH-001 ¶ 3; Ex. NJ-063; Ex. NJ-071; Ex. NJ-074; Ex. NJ-078; Ex. SEC-01-060). Staffing: the workforce on which every restored procedure depended was, in the third quarter of 2021, being verified, exempted, tested and separated under the orders of thirteen jurisdictions with deadlines inside or immediately after the quarter, while the entry proclamations kept foreign-trained clinicians out and the interstate market was conditioned by the same orders (Ex. CA-030; Ex. WA-077; Ex. NY-071; Ex. NJ-056; Ex. FED-207).135 The surgical schedule a hospital cancelled in March 2020 was a backlog it could work down only at the rate the reserves, triggers, conditions, isolation-room rules and staffing orders permitted, and the orders' own dates show that in the largest States the conditions were lifted between April and June 2021 and in Pennsylvania, Washington, New Jersey and Maryland were not lifted before the third quarter of 2021 ended. An employer whose operation was ordered suspended through June 30 was not walking normally on July 1, and the orders' own step dates fix the arithmetic.
What was still in force when the general restrictions ended
When the last general capacity restrictions lifted in June 2021, the following remained in force for this industry and are counted as the orders they are: the federal Healthcare Emergency Temporary Standard and its enforcement directives; the hospital reporting condition of participation; the section 1135 waiver terms under the renewed emergency; the CDC conveyance order and TSA directives; the entry proclamations, land-border notifications, Title 42 orders and inbound-testing order; the Executive Order 13991 and Task Force workplace rules and Executive Order 14042 of September 9, 2021, whose contract clause applied to contracts from October 15, 2021; the workforce vaccination orders of thirteen jurisdictions and their metros; the anti-mandate orders and statutes of five States; Pennsylvania's reduction order to August 23 and its reporting order; Washington's Proclamation 20-24.2; Maryland's surge duties to December 31, 2021; the health-care visitation and infection-prevention orders of California, New York, Oregon, Washington, Massachusetts, Connecticut and the metros, universal face coverings among their controls; the nursing-home visitation, testing and vaccination rules on every discharge; the hospital-capacity orders of Tennessee, Alabama, Nebraska, Indiana and Rhode Island and the Louisiana Insurance Commissioner's order on surge transfers; the crisis standards of Idaho and Alaska; the emergency declarations of twenty-five States on September 21, 2021; the school and child-care infection-prevention orders of the autumn; and the isolation and quarantine orders of the metros.136 The third-quarter inventory above states them with dates. They are not the residue of a suspension; they are orders limiting commerce, travel and group meetings in force during the calendar quarter, and they were addressed to this industry by name.