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The COVID Project

Industry 01 of 27 · Findings

Hospitals and Health Systems

The conclusions for each of the six quarters and the standard of proof they meet.

EDemergency department and intakeIPinpatient units and surge capacitySXsurgery and elective proceduresOCoutpatient clinics and diagnosticsVSvisitation and accessICinfection controlSCsupply chainHRcredentialing, travel nurses…OFadministration and teleworkWFworkforce availabilityCBpatients and payersMKcommunity programs and events
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Findings

On the statute's words, on Tri-State's definitions, on the United States' own representations and on the orders in the Library, employers operating hospitals, health systems and emergency medicine practices in the United States had the operation of their trade or business partially suspended during each of the six calendar quarters from the second quarter of 2020 through the third quarter of 2021 due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19. The Service's contrary account of the period is not a contest of weight; it is a description of a period that did not occur, applied to the one industry the orders named in their own text.

The findings

The second quarter of 2020

During the calendar quarter beginning April 1, 2020 and ending June 30, 2020, the operation of the trade or business of employers in hospitals and health systems was partially suspended due to the elective and non-urgent procedure orders of more than thirty States, the capacity-reserve orders of Texas, Iowa, Kentucky and New York, the hospital visitation orders of Michigan, Massachusetts, Alabama, Alaska, Utah and two California counties and the nursing-home and long-term-care visitation orders of every State, the conditional-resumption orders that followed, the federal waiver, allocation, leave and entry instruments and the metro facility orders, each an order from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19.

The third quarter of 2020

During the calendar quarter beginning July 1, 2020 and ending September 30, 2020, that operation was partially suspended due to Texas's re-postponement and regional-trigger orders, the conditional-resumption regimes of the States, the visitation orders of at least twelve States, the federal reporting condition of participation, the extended allocation rule, the leave mandate, the entry proclamations and the metro facility and testing orders.

The fourth quarter of 2020

During the calendar quarter beginning October 1, 2020 and ending December 31, 2020, that operation was partially suspended due to the winter hospital orders of Texas, Pennsylvania, California, Nebraska, Iowa, Indiana, Mississippi, New Mexico, Massachusetts, Utah, Washington and Maryland, the nursing-home orders, the metro orders of Detroit, San Antonio, St. Louis County and San Diego County, the federal reporting condition, the allocation rule and the entry proclamations.

The first quarter of 2021

During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, that operation was partially suspended due to the continuing winter hospital orders to their stepped expiry between January 4 and April 5, 2021, the conditional-resumption regimes, the visitation orders, the federal workplace infection-prevention order, the conveyance order and its airborne-transmission control on every commute, the inbound-testing order, the entry proclamations and the reporting condition.

The second quarter of 2021

During the calendar quarter beginning April 1, 2021 and ending June 30, 2021, that operation was partially suspended due to the conditional-resumption and standing hospital orders in force to their expiry between April 1 and June 30, 2021 and beyond, the residential-care, hospital-visitation and testing orders, the health-care infection-prevention and licensing orders, the anti-mandate orders and statutes of three States, the federal Healthcare Emergency Temporary Standard from June 21, the long-term-care vaccination rule, the reporting condition, the allocation rule, the federal workplace, conveyance and entry orders and the metro facility orders.

The third quarter of 2021

During the calendar quarter beginning July 1, 2021 and ending September 30, 2021, that operation was partially suspended due to the federal Healthcare Emergency Temporary Standard and its inspection and emphasis directives, the hospital reporting condition of participation and the section 1135 waiver terms under the renewed emergency, the federal workplace, contractor, supply, conveyance, entry and border orders, the workforce vaccination orders of thirteen jurisdictions and their metros with deadlines inside or immediately after the quarter, the anti-mandate orders and statutes of five States, the visitation and health-care infection-prevention orders, Pennsylvania's reduction order to August 23 and its reporting amendment, Washington's Proclamation 20-24.2, the hospital-capacity orders of Maryland, Rhode Island, Tennessee, Alabama, Nebraska and Indiana, the Louisiana Insurance Commissioner's order on surge-related transfers, the crisis standards of care of Idaho and Alaska, the metro orders and the workforce and counterparty orders in force on every day of the quarter.

In each quarter

In each quarter the orders caused a temporary delay, interruption or termination of a more than nominal portion of the industry's operations; in each quarter the suspension existed "during the calendar quarter"; and in each quarter, but for the orders, no law required the change.172

The standards satisfied

Each finding is established by a preponderance of the evidence, on public records subject to judicial notice, in a de novo proceeding.173 Each conclusion stated on this page has substantial authority: the statutory text, four enactments of Congress, the Supreme Court's canons of construction and causation, Tri-State's holdings on the United States' agreed definitions and on a hospital's facts, the District Court's holdings in Stenson Tamaddon, LLC v. IRS, the United States' representations to two federal courts, the Notice's own hospital example, and the instruments themselves.174 A taxpayer who assembled the orders that governed its industry and applied the statute's words to them acted with reasonable cause and in good faith under section 6664(c); the erroneous-claim penalty of section 6676 does not reach such a claim; and a position that applies the words Congress wrote to the Federal Register and the State registers is not frivolous under section 6702 or Notice 2010-33.175 Fraud is the Government's burden by clear and convincing evidence, and nothing in a claim founded on the public record supports it.176 The record establishes each finding, and the standards of proof, penalty protection and frivolousness are addressed in full on the standards page.

The Library's records

The Library is organized by layer: the federal instruments, the States, the metros, the agencies and regulators, the ecosystem, the sector collections and the legal authorities, with the exhibit prefixes FED, the State codes, MET, AGY, ECO, SEC-01 and LAW, and GOV for the Government's own filings. Each exhibit is a file saved from the issuing authority or an identifiable secondary source, indexed with its issuer, instrument, dates, in-force quarters, limitation types, grade, source URL and hash; only exhibits graded verified, from the primary source or from an identifiable secondary source, are cited by name on this page, the grade appears on each exhibit's record, and an instrument graded below that is described only by category. Every count of instruments stated on this site is a count of the instruments The COVID Project has retrieved and indexed, never a count of the orders that reached any employer.

  1. CARES Act § 2301(c)(2)(A)(ii)(I), 134 Stat. 348 (Ex. LAW-001); I.R.C. § 3134(c)(2)(A)(ii)(I), 135 Stat. 177 (Ex. LAW-003); Tri-State at 9, 17-19, 20-21. ↩
  2. Lewis v. Reynolds, 284 U.S. 281, 283 (1932) (Ex. LAW-020); Welch v. Helvering, 290 U.S. 111, 115 (1933) (Ex. LAW-021); Delaney v. Commissioner, 743 F.2d 670, 671 (9th Cir. 1984) (Ex. LAW-070); Fed. R. Evid. 201(b), (c)(2) (Ex. LAW-024); Kater v. Churchill Downs Inc., 886 F.3d 784, 788 n.3 (9th Cir. 2018) (Ex. LAW-023); Doc. 44 at 22-24. ↩
  3. Treas. Reg. § 1.6662-4(d)(2)-(3) (Ex. LAW-036); Treas. Reg. § 1.6662-3(b)(3) (Ex. LAW-035); Tri-State at 9-21; Doc. 44 at 14, 19, 24, 28, 30, 31; Doc. 49 at 15, 17, 20, 26, 27; Notice 2021-20, Q&A-17, Example 4, at 930; Burrage v. United States, 571 U.S. 204, 210-13 (2014) (Ex. LAW-015); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (Ex. LAW-016); Bostock v. Clayton County, 590 U.S. 644, 656 (2020) (Ex. LAW-012); EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 774 (2015) (Ex. LAW-013). ↩
  4. I.R.C. § 6664(c)(1) (Ex. LAW-039); I.R.C. § 6676(a), as amended by Pub. L. 119-21, § 70605(f) (Ex. LAW-040; Ex. LAW-005); I.R.C. § 6702(a) (Ex. LAW-041); Notice 2010-33, 2010-17 I.R.B. 609 (Ex. LAW-026). ↩
  5. 26 U.S.C. § 7454(a) (Ex. LAW-038); Tax Ct. R. 142(b). ↩