The governmental orders by layer
The orders that reached this industry came from seven layers of government, and the Library holds them layer by layer: the federal agencies and the President; the fifty States and the District of Columbia; the metropolitan counties, cities and health districts; the sector regulators, boards, courts, tribes and territories; the counterparties whose own orders limited the commerce between them and the hospital; the standing statutory duties beneath the orders; and the ecosystem instruments that reached the hospital's supplies, workforce and travel. Every instrument cited on this page is indexed in the Library with its issuer, dates, in-force quarters and grade, and every instrument graded unverified is described only by category and never cited by name. This section describes the layers and the lead instruments in each; the quarters section applies them quarter by quarter.
The universe
The scale of the orders
Forty-two States and territories issued mandatory stay-at-home orders reaching 2,355 of the nation's 3,233 counties between March 1 and May 31, 2020, by the CDC's own count (Ex. LAW-201); the COVID Analysis and Mapping of Policies project catalogues more than 20,000 policy instruments at the national and State level, with about 8,000 more at the county level (Ex. LAW-202); the Council of State Governments counted 2,065 executive orders of governors and State agencies between February 2020 and June 29, 2020 alone (Ex. LAW-203); and the Department of Health and Human Services' dataset of State and county policy orders runs to 4,218 entries from March 23, 2020 to August 31, 2021 (Ex. LAW-205).6 On July 2, 2021, the first full day of the third quarter of 2021, thirty-five States were under a declared emergency and nine under a statewide face-covering requirement, the most visible of the airborne-transmission controls the States imposed on every indoor workplace; on September 21, 2021 the counts were twenty-five and eleven (Ex. LAW-246; Ex. LAW-247).7 The Bureau of Labor Statistics recorded the fall of 1.4 million health care jobs in April 2020 (Ex. LAW-206), and the Bureau of Economic Analysis recorded that GDP "decreased at an annual rate of 32.9 percent in the second quarter of 2020," a decline that "reflected the response to COVID-19, as 'stay-at-home' orders issued in March and April were partially lifted" (Ex. LAW-253).8 For this industry the universe is denser and more specific than for any other: the Library's sector collection holds 128 instrument records addressed to hospitals or governing their operation, 72 of them graded from the issuing authority's own text and 40 verified from an identifiable secondary source (the American College of Surgeons' trackers of April 21 and June 8, 2020 supplying the operative text of thirty-one State instruments among them); an instrument the Library grades below that is described on this page only by category, and the State collections hold several hundred more instruments addressed to or governing hospitals.9
The federal layer
The predicates
The Secretary of Health and Human Services determined on January 31, 2020 that a public health emergency existed, effective January 27, 2020, and renewed the determination every ninety days through the period, most recently for these quarters on July 19, 2021 (Ex. FED-016); the President declared a national emergency on March 13, 2020. Those two instruments are treated here as predicates only. What they authorized is treated as orders.
The instruments that reorganized the hospital
CMS's section 1135 blanket waivers, retroactive to March 1, 2020 and continued "through the end of the emergency declaration," waived the enforcement of EMTALA at alternate screening sites, the verbal-order, discharge-planning and medical-staff conditions of participation, and the physical-environment rules, so that every surge site, every off-campus bed and every emergency credential of the period was built on federal terms (Ex. SEC-01-010; Ex. FED-160).10 CMS's interim final rules of March 31, May 8, September 2 and November 2, 2020 rewrote Medicare's payment and participation rules for the duration (Ex. FED-090; Ex. FED-091; Ex. FED-092; Ex. FED-093), and the September 2 rule made daily COVID-19 reporting a condition of every hospital's participation: "During the [PHE] the hospital must report information in accordance with a frequency, and in a standardized format, as specified by the Secretary," on pain of termination (Ex. SEC-01-004).11 CMS's survey memoranda suspended routine surveys, prioritized infection-control surveys and raised infection-control penalties (Ex. FED-099; Ex. FED-165; Ex. FED-166), and its QSO-20-13 memorandum of March 4, 2020, revised March 30, 2020, told every hospital to "Reschedule elective surgeries, procedures, and other visits as necessary" and to "Limit visitors," the standard the State orders converted into law and the surveyors enforced under the infection-control condition of participation (Ex. SEC-01-006; Ex. FED-096).12 CMS's recommendations of March 18, April 7 and April 19, 2020 fixed the tiers, the gating criteria and the conditions of every State resumption; they are treated as the standards the State orders incorporated, and the orders are cited (Ex. SEC-01-007; Ex. SEC-01-008; Ex. SEC-01-009; Utah's order of March 23, 2020; Ex. AZ-015).13
The instruments that governed the hospital's supplies
The President delegated Defense Production Act priority and allocation authority for health and medical resources on March 18, 23 and 27, 2020 (Ex. SEC-01-014; Ex. SEC-01-015; Ex. SEC-01-022); HHS designated scarce materials on March 25, 2020 and renewed the designation through November 15, 2021 (Ex. FED-074; Ex. ECO-A-070; Ex. ECO-A-071); and FEMA's temporary final rule of April 7, 2020, extended on August 10 and December 31, 2020 to June 30, 2021, placed the export and allocation of respirators, masks, gloves and gowns under federal control, with exemptions notified on April 17, 2020 and June 11, 2021 (Ex. SEC-01-013; Ex. FED-075; Ex. FED-076; Ex. FED-077; Ex. FED-078; Ex. FED-079).14 Executive Order 13917 (April 28, 2020) delegated Defense Production Act authority over food supply chain resources for the duration of the national emergency, which fixed the terms on which the hospital's food-service counterparties operated (Ex. FED-073).
The instruments that governed the hospital's workforce and workplace
The FFCRA's leave mandate and the Department of Labor's temporary rules governed every hospital's leave from April 1 through December 31, 2020, with the health-care-provider exclusion narrowed by the September 16, 2020 revision (Ex. FED-170; Ex. ECO-B-002; Ex. ECO-B-003).15 Executive Order 13999 (January 21, 2021) directed OSHA to consider an emergency temporary standard (Ex. FED-062); OSHA's National Emphasis Program of March 12, 2021 targeted health care (Ex. FED-082); the Healthcare Emergency Temporary Standard was published June 21, 2021, with compliance dates of July 6 and July 21, 2021 (Ex. SEC-01-001; Ex. FED-080); its inspection procedures issued June 28, 2021 (Ex. SEC-01-002; Ex. FED-081); the revised National Emphasis Program of July 7, 2021 placed hospitals first among its target industries and ran "for no more than 12 months" (Ex. SEC-01-003; Ex. FED-083); and OSHA's enforcement response plan of the same day governed citations (Ex. FED-084).16 Executive Order 13991 imposed workplace infection-prevention and exposure-control requirements on every federal building and on-site contractor from January 20, 2021, universal masking, physical distancing and the other CDC measures among them (Ex. FED-060); the Safer Federal Workforce Task Force's Model Safety Principles of July 29, 2021 required attestation of vaccination status by every onsite contractor (Ex. FED-272; Ex. FED-278); Executive Order 14042 (September 9, 2021) directed every agency to include in covered contracts entered into, extended, renewed or optioned on or after October 15, 2021 a clause requiring compliance with the Task Force's guidance (Ex. SEC-01-016; Ex. FED-063; Ex. FED-275); Executive Order 14043 required vaccination of the federal workforce (Ex. FED-064); and the Department of Veterans Affairs mandated vaccination of its medical employees on July 26, 2021 (Ex. ECO-B-089; Ex. AGY-FED-HEALTH-OTHER-069; Ex. AGY-FED-HEALTH-OTHER-070). The Department of Defense postponed elective procedures at every military treatment facility from March 31 to May 21, 2020 and conditioned the TRICARE network's care.17 CMS's long-term-care vaccination rule of May 21, 2021 (Ex. FED-094; Ex. FED-163) and its announcements of August 18 and September 9, 2021 (Ex. SEC-01-020; Ex. SEC-01-017) fixed the counterparty and staffing environment of the third quarter of 2021; the hospital staff vaccination rule itself, CMS-3415-IFC of November 5, 2021, is post-period and is never treated as in force (Ex. SEC-01-018).18
The instruments that governed travel and entry
Proclamations 9984 and 9992 (China and Iran) ran from February 2020 to November 8, 2021, Proclamation 10014 suspended most immigrant entry from April 23, 2020 until its revocation on February 24, 2021, Proclamation 10052 suspended H-1B, H-2B, L and J entry from June 24, 2020 to March 31, 2021, and Proclamations 10143 and 10199 (the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa and India) ran through the third quarter of 2021 (Ex. FED-200; Ex. FED-201; Ex. FED-210; Ex. FED-214; Ex. FED-211; Ex. FED-207; Ex. FED-208; Ex. FED-209); the land-border notifications continued the Canada and Mexico restrictions month by month through October 21, 2021 (Ex. FED-232; Ex. FED-233; Ex. FED-234; Ex. FED-235; Ex. FED-255; Ex. FED-256; Ex. FED-257; Ex. FED-258); the CDC's Title 42 orders were in force on every day of 2021 and its inbound-testing order on every day from January 26, 2021 (Ex. FED-034; Ex. FED-037; Ex. FED-038; Ex. FED-042); and the CDC's conveyance order, an airborne-transmission control that made face coverings a condition of carriage and was enforced by TSA security directives, conditioned every hospital worker's commute by bus, rail and air from February 1, 2021 through the period (Ex. FED-020; Ex. FED-050; Ex. FED-051; Ex. FED-052; Ex. FED-056; Ex. FED-057; Ex. FED-061).19 The Office for Civil Rights' telehealth enforcement discretion of March 17, 2020 and the DEA's telemedicine exception fixed the terms on which every hospital clinic moved online (Ex. FED-194; Ex. AGY-FED-HEALTH-OTHER-001; Ex. AGY-FED-HEALTH-OTHER-009; Ex. AGY-FED-HEALTH-OTHER-015); the FDA's emergency use authorizations for tests, ventilators and respirators, and its revocations of them noticed at 86 Fed. Reg. 48712 (Aug. 31, 2021), fixed what a hospital could buy and use (Ex. AGY-FED-HEALTH-OTHER-048 through Ex. AGY-FED-HEALTH-OTHER-055; the last is the March 6, 2023 reissuance of the umbrella surgical-mask authorization of August 5, 2020 and is cited for the authorization it recites); and the Provider Relief Fund's terms and conditions bound every recipient (Ex. AGY-FED-HEALTH-OTHER-118).
The fifty States
The Northeast
New York cancelled elective surgeries and ordered every general hospital to plan a fifty percent increase in beds on March 23, 2020, resumed county by county on conditions from April 29, held New York City and Long Island hospitals under the cancellation into June, and in the third quarter of 2021 required the first dose of every general hospital employee by September 27, 2021 and, by regulation, the airborne-transmission control of universal face coverings in every health care setting (Ex. NY-005; Ex. NY-019; Ex. NY-071; Ex. NY-073; Ex. NY-074; Ex. NY-078; Ex. NY-135).20 New Jersey suspended every adult elective surgery and invasive procedure from 5:00 p.m. on March 27 to 5:00 a.m. on May 26, 2020, resumed under Department of Health directives that governed capacity, protective equipment, staffing, cohorting, testing, visitors and reporting through January 11, 2022, and required vaccination or weekly testing of every covered worker from September 7, 2021 (Ex. NJ-006; Ex. NJ-016; Ex. NJ-063; Ex. NJ-066; Ex. NJ-067; Ex. NJ-071; Ex. NJ-074; Ex. NJ-078; Ex. NJ-084; Ex. NJ-085; Ex. NJ-056).21 Pennsylvania prohibited elective procedures from March 19, 2020, required daily hospital reports of supplies and equipment from March 24, 2020, amended on July 10, 2020, January 27, 2021 and August 13, 2021, and ordered a fifty percent reduction of elective procedures on regional notice from November 23, 2020 to August 23, 2021 (Ex. PA-004; Ex. PA-069; Ex. PA-025; Ex. PA-044; Ex. PA-041; Ex. PA-101).22 Massachusetts restricted hospital visitors from March 17, 2020 and postponed every nonessential elective invasive procedure from March 18, 2020, permitted attested providers to resume urgent procedures from May 18, ordered the scheduling of elective invasive procedures from June 24 and again from December 11, 2020 to March 1, 2021, kept the infection-prevention requirement of face coverings in health care and congregate settings from May 29, 2021 and required vaccination of long-term-care personnel by October 10, 2021 (Ex. MA-057; Ex. SEC-01-071; Ex. MA-060; Ex. MA-061; Ex. MA-065; Ex. MA-066; Ex. MA-050; Ex. MA-067).23 Maryland's Secretary of Health ceased elective and non-urgent procedures from 5:00 p.m. on March 24, 2020, resumed them on conditions from 7:00 a.m. on May 7, restated the directive repeatedly through 2020 and 2021 with hospital surge and visitation duties running to December 31, 2021, and required proof of a first dose from every hospital worker by September 1, 2021 (Ex. MD-040; Ex. MD-044; Ex. MD-043; Ex. MD-050; MDH Order 2021-06-15-03; Ex. ECO-B-056; Ex. MD-060; Ex. SEC-01-103).24 Connecticut's Office of Health Strategy waived the certificate-of-need requirements for every hospital and outpatient surgical facility that temporarily suspended services or added beds, from March 25, 2020 "[d]uring the pendency of the public health emergency," its Department of Public Health barred visitors from nursing homes, residential care homes and chronic disease hospitals from March 13 to September 25, 2020 and required universal masking, as an airborne-transmission control, in health care settings from August 7, 2021 (Ex. CT-064; Ex. CT-059; Ex. CT-060; Ex. CT-052).25 Rhode Island's Executive Orders 20-17, 20-21, 20-33 and 20-70 and their successors through Executive Order 21-91 suspended certificate-of-need and hospital-capacity rules from April 2020 through the third quarter of 2021, the 2021 restatements, Executive Orders 21-67 and 21-81, being recited in the Appropriations Act that carried them, and its Department of Health required immunization of every health care worker by October 1, 2021 (Ex. RI-011; Ex. RI-013; Ex. RI-018; Ex. RI-023; Ex. RI-073; Ex. RI-058; Ex. RI-072; Ex. RI-090).26 Vermont postponed all non-essential adult elective surgery from March 20, 2020, authorized the resumption of clinic visits, diagnostic imaging and outpatient procedures under Health Department mitigation requirements from May 4, 2020, and carried the Commissioner's mitigation requirements in section 4 of the amended and restated order from June 15, 2020 to June 15, 2021 (Ex. SEC-01-080; Ex. VT-018; Ex. VT-095).27 New Hampshire prohibited visitors at every nursing, assisted-living, long-term-care and residential-care facility from 11:59 p.m. on March 15, 2020 and authorized waivers of hospital licensing rules to prevent the overburdening of hospitals (Ex. NH-001 ¶¶ 3, 10), activated the New Hampshire Crisis Standards of Care Plan by Emergency Order #33 on April 17, 2020 (Ex. NH-044), and made its Guiding Principles for Responsibly Resuming Health Care Services binding as State reopening guidance from May 4, 2020 to May 7, 2021 (Ex. NH-051).28 Maine adopted the emergency rule adding COVID-19 to the immunizations required of every health-care, EMS and dental employee on August 12, 2021, requiring the final dose by September 17, 2021 for full vaccination by October 1, with exclusion of the unvaccinated from the worksite and enforcement deferred by notice to October 29, 2021.29 Delaware amended its hospital licensing standards by emergency order effective July 1, 2021 and again, with vaccination-or-testing of every staff member, vendor and volunteer, effective September 30, 2021 (Ex. DE-062; Ex. DE-047; Ex. DE-046; Ex. DE-055; Ex. DE-064; Ex. AGY-ST-HEALTH-SUBORDERS-041), and imposed the infection-prevention requirement of universal masking on every student, staff member and visitor in every K-12 school and in State congregate settings from August 16, 2021 (Ex. DE-044).30 The District of Columbia's health department recommended the postponement of elective procedures on March 17, 2020 (Ex. SEC-01-116) and then governed their resumption by mandatory Phase One and Phase Two guidance from May 29, June 22 and September 29, 2020 through the second quarter of 2021 (Ex. DC-037; Ex. DC-069; Ex. DC-038), and Mayor's Order 2021-099 of August 10, 2021 set the first-dose deadline of September 30, 2021 for every health care worker (Ex. SEC-04-059; Ex. DC-075).31
The South
Texas postponed every surgery and procedure "not immediately medically necessary" from March 22, 2020, permitted resumption 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, 2020 and a ten percent reserve from September 17, 2020, re-postponed elective procedures in Bexar, Dallas, Harris and Travis Counties from June 26 and in more than one hundred counties from June 30, converted the postponement into a regional trigger on September 17 and October 14, 2020 that ran with the reserve until March 10, 2021, and in the third quarter of 2021 forbade governmental entities, including public hospital districts, to mandate staff vaccination or proof of vaccination while its disaster declaration was renewed monthly (Ex. TX-004; Ex. TX-009; Ex. TX-012; Ex. TX-020; Ex. TX-024; Ex. TX-026; Ex. SEC-01-051; Ex. SEC-01-052; Ex. TX-001; Ex. TX-038).32 Florida prohibited every medically unnecessary, non-urgent or non-emergency procedure from March 20 to May 4, 2020, permitted resumption only for facilities able to convert beds to surge use and self-sufficient in protective equipment, and forbade any business to require vaccination documentation of patrons, by Executive Order 21-81 from April 2, 2021 and, from July 1, 2021, by section 381.00316 on pain of a $5,000 fine (Ex. FL-009; Ex. SEC-01-065; Ex. FL-056; Ex. SEC-01-082).33 Kentucky's Cabinet for Health and Family Services ceased every non-emergent in-person procedure from March 18, 2020, resumed in four phases from April 27 to May 27, 2020 with a thirty percent bed reserve and a fifty percent volume cap, and modified its orders on September 10, 2020 (Ex. KY-009; Ex. KY-015; Ex. KY-029). Virginia's Order of Public Health Emergency Two prohibited procedures requiring protective equipment from March 25 to May 1, 2020, and its Executive Order 52 authorized hospitals to add beds (Ex. VA-003). West Virginia prohibited all elective medical procedures from April 1, 2020 and kept Executive Orders 28-20 and 30-20, requiring hospital capacity plans and protective-equipment sufficiency, in force through the third quarter of 2021 by Executive Order 12-21 (Ex. WV-014; Ex. WV-023; Ex. WV-024; Ex. WV-045; Ex. WV-080 (rev. Aug. 21, 2020; through the second quarter of 2021); Ex. WV-064). Tennessee postponed non-essential procedures from March 24 to April 30, 2020, restricted long-term-care visitation to February 27, 2021, and suspended licensing and capacity rules for hospitals from August 6 to October 5, 2021 (Ex. SEC-01-073; Ex. SEC-01-074; Ex. TN-019; Ex. TN-052; Ex. SEC-01-075). Alabama's State Health Officer barred hospital visitation from March 19, 2020, postponed all procedures from March 28 to April 30, 2020, carried hospital visitation rules through the Safer at Home and Safer Apart orders to 11:59 p.m. on May 31, 2021, and the Governor proclaimed a hospital-capacity emergency on August 13, 2021 (Ex. AL-005; Ex. AL-011; Ex. AL-024; Ex. AL-034; Ex. AL-045; Ex. AL-051 ¶ 7; Ex. AL-052). Mississippi's Executive Order 1470 ordered all licensed health care professionals and facilities to postpone all surgeries and procedures not immediately medically necessary from April 10, 2020 until Executive Order 1477 permitted them from April 27, 2020 within the CMS tiers with a twenty-five percent reserve and one visitor, its Executive Order 1471 granted civil immunity to health care facilities and credentialing authority to the boards, and the State imposed a statewide hospital rule on October 21, 2020 and carried it to March 3, 2021 (Ex. MS-006; Ex. SEC-01-088; Ex. MS-010; Ex. MS-040). Louisiana's Department of Health confined every medical and surgical procedure to emergency conditions from March 21, 2020, permitted time-sensitive procedures on protective-equipment and testing conditions from April 27, extended the regime "until further notice" on July 2, 2020 and released it on May 24, 2021, and governed nursing-home visitation by order from September 18, 2020 through the period (Ex. LA-043; Ex. LA-044; Ex. LA-045; Ex. LA-046; Ex. LA-047; Ex. LA-050; Ex. SEC-01-106), and Louisiana's Department of Insurance, by Emergency Rule 46 effective 12:01 a.m. on August 9, 2021, required every health insurance issuer to cover care at step-down facilities for patients transferred out of any acute care hospital whose inpatient occupancy exceeded 85 percent. Arkansas's Department of Health mandated hospital screening from March 19, 2020, directed the postponement of elective surgeries from April 3, resumed them with pre-procedure testing to August 1, 2020, and governed long-term-care visitation, screening and staffing by directive through the third quarter of 2021 (Ex. AR-035; Ex. AR-040; Ex. AR-044; Ex. AR-059; Ex. AR-064; Ex. AR-068). North Carolina's Secretary requested the suspension of elective procedures from March 23, 2020, and the State's stay-at-home and visitation orders supplied the mandatory layer (Ex. NC-068; Ex. NC-004). Oklahoma postponed all elective surgeries from March 24 to April 24, 2020 and resumed them in tiers (Ex. OK-006; Ex. OK-011; Ex. OK-018; Ex. OK-020). Georgia and South Carolina issued no statewide elective-procedure order; their hospitals operated under the stay-at-home, visitation and emergency instruments held in the Library's State records (Ex. GA-041; Ex. GA-042; Ex. GA-044; Ex. SEC-01-084; Ex. SC-003).34
The Midwest
Ohio's Director of Health ordered that non-essential surgeries and procedures "should not be conducted" from March 18, 2020, permitted procedures without an overnight stay from May 1, amended the requirements on June 2, 2020 and rescinded them April 5, 2021, restricted nursing-home access by seven amended orders to June 18, 2021, and kept its testing and reporting orders in force through the third quarter of 2021 (Ex. OH-007; Ex. OH-027; Ex. OH-009; Ex. OH-036; Ex. OH-102; Ex. OH-075; Ex. OH-049; Ex. OH-071; Ex. OH-072).35 Michigan prohibited hospital visitors from March 14, 2020 and non-essential procedures from March 21 to May 28, 2020, and its Department of Health and Human Services governed residential care by emergency order from October 2020 through the third quarter of 2021 (Ex. MI-003; Ex. SEC-01-086; Ex. SEC-01-089; Ex. MI-051; Ex. MI-055; the MDHHS order of May 21, 2021).36 Indiana directed the postponement of non-essential surgeries from March 16 and April 1, 2020, resumed them on conditions from April 27, directed hospitals to postpone non-emergent inpatient procedures from December 16, 2020 to January 3, 2021 and, by Executive Orders 20-53 and 21-01, to reprioritize them under evidence-based capacity criteria to January 31, 2021, with the county-based measures of Executive Orders 21-02 and 21-06 running to April 5, 2021, and in the third quarter of 2021 directed every hospital by Executive Order 21-24 (September 1, 2021) to implement evidence-based capacity criteria, to reprioritize or postpone non-emergent surgeries or procedures where necessary and to report diversion status and staffing daily (Ex. IN-003; Ex. IN-011; Ex. IN-022; Ex. IN-048; Ex. IN-051; Ex. IN-053; Ex. IN-056; Ex. IN-071). Illinois's Department of Public Health directed postponement from March 19, 2020 and resumption on criteria from May 11; the Governor required vaccination or weekly testing of every health care worker from September 5 and then September 19, 2021 (Ex. SEC-01-095; Ex. SEC-01-078; Ex. SEC-01-079).37 Minnesota postponed every procedure using protective equipment from 5:00 p.m. on March 23 to May 10, 2020 on pain of a misdemeanor, required inventory and reporting of protective equipment from March 25, 2020, and governed resumption by written plan, protective-equipment supply, testing and capacity monitoring until May 27, 2021 (Ex. SEC-01-066; the inventory and reporting order of March 25, 2020; Ex. SEC-01-067). Iowa prohibited nonessential surgeries from March 27, 2020, permitted them from April 27 on a thirty percent bed reserve, limited them again from November 17, 2020 to February 7, 2021, and extended its disaster emergency through the third quarter of 2021 (the Governor's proclamation effective March 27, 2020; Ex. IA-011; the proclamation effective November 17, 2020 and its continuations of December 10 and 17, Ex. IA-032; Ex. IA-033; the proclamation ending the limits on February 7, 2021; Ex. IA-041). Nebraska prohibited elective surgeries and procedures by directed health measure from April 3 to May 4, 2020, paused elective surgeries requiring an overnight stay by the directed health measures of November 16, 2020 under a hospitalization-rate framework that ran to May 24, 2021, kept Executive Order 20-12 of March 31, 2020, which suspended the twenty-five-bed limit on critical access hospitals and the prohibition on overnight stays at ambulatory surgical centers and expanded telehealth, in force to 11:59 p.m. on August 27, 2021, and on August 26, 2021 declared by Executive Order 21-12 that "a hospital capacity emergency exists" and suspended licensing, training and credentialing rules to add health care workforce capacity to December 31, 2021 (Ex. SEC-01-107; Ex. NE-023; Ex. NE-050; Ex. NE-067; Ex. NE-068).38 Wisconsin, Missouri, Kansas, North Dakota and South Dakota governed their hospitals through stay-at-home and health-care orders (Ex. WI-002; Missouri's and Kansas's stay-at-home orders; Ex. ND-004; Ex. ND-020; Ex. SD-005; Ex. SD-009), South Dakota's Executive Orders 2020-08 and 2020-12 directing the postponement of non-essential elective surgeries from March 23 and April 6, 2020 and North Dakota restricting long-term-care visitation from April 6, 2020 to March 12, 2021 (Ex. SD-005; Ex. SD-009; Ex. ND-020; Ex. ND-048).39
The West
California's State Public Health Officer ordered hospitals in regions with ten percent or less intensive-care capacity to accept transfers and delay non-essential surgeries from December 17, 2020 and January 5 to February 5, 2021, required verification of every health care worker's vaccination status with testing of the unvaccinated from August 9, 2021, full vaccination of every hospital worker by September 30, 2021, and vaccination or testing of every indoor hospital visitor from August 11, 2021, and Cal/OSHA's COVID-19 Prevention emergency temporary standard bound every workplace from November 30, 2020 as readopted June 17, 2021 (Ex. CA-026; Ex. CA-031; Ex. CA-030; Ex. SEC-01-060; Ex. CA-038; Ex. AGY-ST-HEALTH-SUBORDERS-092; Ex. AGY-ST-HEALTH-SUBORDERS-110).40 Washington prohibited non-urgent procedures from March 19, 2020, permitted them from May 18 only under the Governor's clinical and protective-equipment criteria, replaced that regime on December 3, 2020 with Proclamation 20-24.2, the order Tri-State construed, which remained in force through the third quarter of 2021, and prohibited any health care setting from permitting an unvaccinated provider to work after October 18, 2021 by Proclamations 21-14, 21-14.1 and 21-14.2 (Ex. WA-015; Ex. WA-032; Ex. WA-049; Ex. WA-077; Ex. WA-079; Ex. WA-087; Ex. WA-002; Ex. WA-012; Ex. WA-023; Ex. WA-043; Ex. WA-057; Ex. WA-078).41 Oregon cancelled every elective and non-urgent procedure using protective equipment from March 23, 2020, permitted them from May 1 under Oregon Health Authority criteria that ran to June 30, 2021, and required every health care worker to be vaccinated or excepted by October 18, 2021 and, from August 20, 2021, the airborne-transmission control of universal face coverings in every health care setting (Ex. SEC-01-068; Ex. SEC-01-069; Ex. OR-046; Ex. OR-051; Ex. SEC-01-110; Oregon OSHA's rule OAR 437-001-0744 as made permanent May 4, 2021 and amended August 13, 2021).42 Arizona delayed every elective surgery using protective equipment from March 21, 2020, ordered every hospital to increase capacity, and permitted resumption from May 1, 2020 only on exemption for facilities at no more than eighty percent occupancy with fourteen days of protective equipment and testing of every patient, a regime rescinded April 1, 2021 (Ex. AZ-004; Ex. AZ-008; Ex. AZ-015; Ex. SEC-01-061). Colorado suspended voluntary and elective procedures from March 23 to April 26, 2020, permitted them from April 27 under protocols amended thirteen times to April 16, 2021, governed skilled nursing facilities by Public Health Order 20-20 through the period, and required vaccination of every licensed health care facility's personnel by emergency rule of August 30, 2021 with a first dose by September 30 (the executive order suspending elective procedures from March 23, 2020; Ex. SEC-01-090; Public Health Order 20-29 and its amendments through the Thirteenth Amended order of April 9, 2021; Ex. CO-002; Ex. CO-055; Ex. CO-091).43 New Mexico prohibited non-essential health care services and surgeries from March 27, 2020, permitted gradual resumption under Department of Health guidelines and attestation from May 1, restricted non-essential surgical procedures again from December 11, 2020 to January 4, 2021, restricted nursing facility visitation by order from March 13, 2020, and by the Public Health Emergency Order of August 17, 2021 required every hospital worker to be fully vaccinated, the first dose within ten days, by August 27, 2021, and the second within forty days of the first, with exempt workers subject to weekly testing and face coverings as exposure controls, and by the Amended Order of September 15, 2021 required every hospital to report its workers' vaccination counts to the Department of Health (Ex. NM-007; Ex. NM-013; Ex. NM-043; Ex. NM-002; Ex. NM-068; Ex. NM-071). Utah postponed every elective surgery by reference to the CMS recommendations from March 25, 2020, imposed infection-prevention and exposure-control protocols on every covered health care provider by order of April 21, 2020 (announced April 22; the retrieved text is the May 1, 2020 version, in force to May 15, 2020), face masks for every individual in the facility within six feet of another, entry screening and one-companion limits among them, and declared a hospital-capacity emergency on November 8, 2020 (the State Public Health Orders of March 23 and April 21, 2020; Ex. UT-028). Nevada's Directive 011 governed health care licensing and scope from April 1, 2020 through the third quarter of 2021, as amended by Directive 046 on July 20, 2021 (Ex. NV-013; Ex. NV-040), Directive 047 imposed the airborne-transmission control of face coverings in every indoor public space from July 30, 2021 (Ex. NV-041), Nevada OSHA adopted the federal Healthcare Emergency Temporary Standard for every Nevada health-care workplace effective July 1, 2021 (Ex. AGY-ST-LABOR-WORKPLACE-040), and the State Board of Health's emergency regulation of September 10, 2021 required vaccination of State health-care and detention workers by November 1 (Ex. NV-056; Ex. NV-057). Idaho suspended hospital and licensing rules from April 2, 2020, activated its National Guard for its hospitals by Executive Order 2021-11 on August 31, 2021 (Ex. ID-030; the Governor's releases of August 31 and September 21, 2021, Ex. ID-062 and Ex. ID-067, are cited as the State's own account at the time) and activated the Crisis Standards of Care Plan of October 2020 (Ex. ID-052) for the Panhandle and North Central Health Districts on September 7 and statewide on September 16, 2021 (Ex. ID-071; Ex. ID-064; Ex. SEC-01-100; Ex. ID-072). Alaska postponed non-urgent and elective procedures from March 19, 2020, barred visitors from health care facilities by Health Mandate 005 (March 19, 2020, revised April 7) and Health Mandate 015 (issued April 15, 2020; Sections I and II effective April 20 and May 4; expired November 15, 2020) (Ex. AK-007; Ex. AK-017), suspended visitation at the State's psychiatric institute and other State institutions from March 14, 2020 (Ex. AK-003), and activated crisis standards of care on September 21, 2021 (Ex. AK-031; Ex. AK-092). Montana's directives of March 15 and 23, 2020 suspended nursing-home visitation and imposed hospital surge-capacity, procurement and patient-transfer duties carried to June 30, 2021 (Ex. MT-003; Ex. MT-006; Ex. MT-034; Ex. MT-035), and its House Bill 702 of May 7, 2021 forbade every employer, hospitals included, to condition employment on vaccination status (Ex. SEC-01-081). Hawaii's Executive Order 21-06 of September 1, 2021 governed health care facilities through the emergency (Ex. HI-027). Wyoming's Department of Health issued its guidance on resuming elective procedures on April 24, 2020 (Ex. WY-011).44
The regional synthesis
Three features of the State layer matter for this industry. First, the spring 2020 elective-procedure orders were near-universal and were followed everywhere by conditional resumption on capacity, protective-equipment, testing and attestation terms fixed by order, so that the industry's largest service line operated on governmental conditions in every State through at least the summer of 2020 and in New Jersey, Washington, Pennsylvania, Maryland, West Virginia, Minnesota, Oregon and Rhode Island into 2021. Second, the winter of 2020-21 produced a second round of mandatory hospital orders in twelve States, each keyed to the hospital's own census. Third, in the third quarter of 2021 the State layer split: thirteen jurisdictions compelled the vaccination of the hospital workforce by dates inside or immediately after the quarter, while Texas, Montana and Arkansas forbade public hospitals or all employers to condition employment on vaccination and Florida and Georgia forbade businesses and State service providers to require vaccination documentation of those they served; a hospital in either group operated under an order that fixed what it could require of its staff, its visitors and its patients.45
The largest metros
The local layer
The metropolitan collections hold the county and city instruments that reached hospitals beneath the State layer. San Diego County barred non-essential personnel from every hospital from March 13, 2020 to June 15, 2021, ordered hospitals to delay elective procedures, and in the third quarter of 2021 kept its isolation and quarantine orders, with return-to-work conditions for health care workers, in force (Ex. MET-SAN-002; Ex. MET-SAN-003; Ex. MET-SAN-022; Ex. MET-SAN-023; Ex. MET-SAN-024).46 Riverside County barred non-essential personnel from hospitals and directed the postponement of elective surgery on April 4, 2020, and San Bernardino County imposed workplace infection-prevention and exposure-control requirements on every licensed facility from April 6, 2020 (temperature screening and symptom self-evaluation of every entrant, masking of all staff and single-facility staffing), restated them on May 8, 2020 with face coverings for every individual in the facility and N-95 respirators for health care professionals when available, and continued the regime by its order of June 15, 2021 through the period (Ex. MET-RIV-006; Ex. MET-RIV-022; Ex. MET-RIV-027; Ex. MET-RIV-023; Ex. MET-RIV-024; Ex. MET-RIV-031). Denver's Department of Public Health and Environment ordered the personnel of hospitals, clinical settings and their onsite contractors "to be fully vaccinated by September 30, 2021" (Ex. MET-DEN-023; Ex. MET-DEN-025).47 Philadelphia's Board of Health adopted an emergency regulation on August 12, 2021 barring any unvaccinated health care worker from working at a health care institution after October 15, 2021 (Ex. MET-PHL-021; Ex. MET-PHL-022). New York City required vaccination or testing of the staff of its public hospital system (Ex. MET-NYC-035). San Francisco's Order C19-07y required every business with personnel in the settings the order designated, hospitals and skilled nursing facilities among them, to ascertain vaccination status and ensure full vaccination (Ex. MET-SFO-008), and Contra Costa County required every health care facility to offer testing from September 25, 2020 (Ex. MET-SFO-037). Minneapolis regulated every congregate health care facility by misdemeanor-backed emergency regulation from April 28 to July 24, 2020 (Ex. MET-MSP-008; Ex. MET-MSP-012). Detroit's twenty-five-page order of October 9, 2020 carried health care, outpatient and telehealth sections (Ex. MET-DET-001), and the Wayne County orders of October 8 and 16, 2020 carried the long-term-care protections locally (Ex. MET-DET-014; Ex. MET-DET-032). San Antonio and Bexar County limited long-term-care staff to one facility from April 4, 2020, barred nursing-home visitation from July 17, 2020 and required every licensed hospital in the City to reserve ten percent of its capacity from November 25, 2020 (Ex. MET-SAT-009; Ex. MET-SAT-035; Ex. MET-SAT-051; Ex. MET-SAT-052). St. Louis County's Residential Living Facilities Order, Rapid Notification Order and Quarantine and Isolation Orders bound every hospital laboratory and every exposed worker from April 2, 2020 through the third quarter of 2021 (Ex. MET-STL-056; Ex. MET-STL-083; Ex. MET-STL-067; Ex. MET-STL-098). King County's isolation order confined every positive worker and its facilities order converted lodging to isolation and recovery use (Ex. MET-SEA-004; Ex. MET-SEA-050; Ex. MET-SEA-048). Marion County's Health and Hospital Corporation, a public hospital corporation, required vaccination of its workforce by September 20, 2021 (Ex. MET-IND-093), and Marion County's Public Health Order 35-2020 required tested visitors in nursing homes and, as an infection-prevention control, universal face coverings of everyone in hospitals from November 16 to December 14, 2020, its successor public health orders carrying the health-care-setting face-covering control into 2021 (Ex. MET-IND-035; the successors are described by category). New Orleans imposed the airborne-transmission control of face coverings "in all healthcare facilities, including physician's offices, hospitals, and long-term care facilities" in every guideline through September 30, 2021 (Ex. MET-MSY-027), and Baltimore City's Health Commissioner imposed the same control, requiring face coverings when "obtaining healthcare services, including ... hospitals," by order dated and effective August 10, 2021 (Ex. MET-BAL-017). Columbus's Executive Order 2021-01 of September 10, 2021 required, as an infection-prevention control, CDC-standard masking in health care facilities (Ex. MET-CMH-048). Orange County, Florida declared its third-quarter 2021 emergency on findings that providers "have had to turn down ... patients seeking elective procedures" (Ex. MET-ORL-013). The remaining metro instruments that reached this industry, including the general face-covering and exposure-control, proof-of-vaccination and gathering orders of the third quarter of 2021, are held in the Library's metro records.48
The sector regulators
The regulators of the hospital as a licensed facility and an employer
The State health department sub-order collections hold the Pennsylvania hospital reporting orders (Ex. AGY-ST-HEALTH-SUBORDERS-070; Ex. AGY-ST-HEALTH-SUBORDERS-018), the Delaware vaccination-or-testing orders for nine classes of facility effective September 30, 2021 (Ex. AGY-ST-HEALTH-SUBORDERS-041 through Ex. AGY-ST-HEALTH-SUBORDERS-050), California's All Facilities Letter 21-34 implementing the August 5, 2021 vaccination order (Ex. AGY-ST-HEALTH-SUBORDERS-092) and its guidance of July 28, 2021 stating the airborne-transmission control of universal masking in every health care setting (Ex. AGY-ST-HEALTH-SUBORDERS-110), New Jersey's hospital directive (Ex. AGY-ST-HEALTH-SUBORDERS-033) and the Massachusetts orders of 2021 (Ex. AGY-ST-HEALTH-SUBORDERS-116 through Ex. AGY-ST-HEALTH-SUBORDERS-120). The State labor agencies' standards bound every hospital as an employer: Virginia's emergency temporary standard from July 27, 2020, permanent standard from January 27, 2021 and amended standard from September 8, 2021 (16VAC25-220; the Safety and Health Codes Board's rulemaking record and its post-period revocation of March 23, 2022, Ex. AGY-ST-LABOR-WORKPLACE-001 and Ex. AGY-ST-LABOR-WORKPLACE-043, are cited for the standard's history and not as instruments in force), Michigan's MIOSHA emergency rules from October 14, 2020 (Ex. AGY-ST-LABOR-WORKPLACE-062 for the rules as refiled May 24, 2021), Oregon OSHA's COVID-19 rule, OAR 437-001-0744, effective as a temporary rule November 16, 2020, made permanent May 4, 2021, amended August 13, 2021 to restore the airborne-transmission control of face coverings in every indoor workplace alongside the rule's distancing, sanitation, ventilation, notification and training requirements, and amended again September 14, 2021 (Ex. AGY-ST-LABOR-WORKPLACE-018; Ex. AGY-ST-LABOR-WORKPLACE-021), Cal/OSHA's standard from November 30, 2020 as readopted June 17, 2021 (the Standards Board's finding of emergency, Ex. AGY-ST-LABOR-WORKPLACE-002, is the rulemaking record), Washington's workplace rules (Ex. AGY-ST-LABOR-WORKPLACE-050; Ex. AGY-ST-LABOR-WORKPLACE-054; Ex. AGY-ST-LABOR-WORKPLACE-055; Ex. AGY-ST-LABOR-WORKPLACE-056) and Nevada OSHA's adoption of the federal Healthcare Emergency Temporary Standard effective July 1, 2021 (Ex. AGY-ST-LABOR-WORKPLACE-040).49 The State boards of pharmacy, medicine and nursing issued the emergency rules on licensure, controlled substances and telemedicine under which every hospital credentialed and prescribed; they are held in the Library's records for the State health boards and are cited by exhibit on the Physician Practices and Outpatient Care page.50 The courts' orders reached the hospital's legal function (subpoenas, guardianships, commitments, collections) and are addressed on the Professional and Information Services and Financial Services pages. Tribal governments regulated hospitals on tribal land, including the Navajo Nation's public health emergency orders and the Cherokee Nation's employee vaccination order (Ex. AZ-068; Ex. OK-090; Ex. AGY-TRIBAL-020), and Puerto Rico's Executive Order OE-2021-062 imposed vaccination-or-testing on health care workers from August 16, 2021 (Ex. AGY-TERRITORIES-033).51
The counterparties
The orders on the hospital's counterparties
A hospital's operation runs through counterparties, and the counterparties' orders were orders limiting the commerce between them and the hospital. Nursing homes and post-acute facilities, the destination of every discharge that cannot go home, were under CMS's visitation, testing and reporting rules (Ex. FED-156; Ex. FED-161; Ex. FED-168; Ex. FED-091) and, from May 21, 2021, its vaccination-education-and-offer rule (Ex. FED-094; Ex. FED-163), and under State admission and visitation orders in every quarter (Ex. NH-001 ¶ 3; Ex. NJ-063; Ex. NJ-064; the Michigan MDHHS order of May 21, 2021; Ex. LA-050; Ex. AR-068; Ex. OH-049; Ex. OH-071; Ex. NM-002; Ex. TN-052; Ex. MT-035; Ex. ID-051; Ex. CO-002; Ex. WV-080 (rev. Aug. 21, 2020; through the second quarter of 2021); Ex. WV-064).52 Patients were confined by the stay-at-home orders of every State in the spring of 2020 and by the curfews and gathering limits of the winter of 2020-21, held State by State and metro by metro in the Library. Payers were rewritten by the CMS interim final rules (Ex. FED-090 through Ex. FED-093) and bound by State insurance bulletins such as Delaware's Bulletin No. 115. Emergency medical services and first responders were placed under the vaccination-verification orders of Marin County and Denver (Ex. MET-SFO-050; Ex. MET-DEN-023). Schools and child-care centers, on which the hospital's workforce depends, were closed in every State in the spring of 2020 and placed under infection-prevention orders, universal masking among their controls, in the autumn of 2021 (Ex. MET-DEN-024; Ex. MET-DET-013; Ex. MET-DET-015; Ex. DE-045; Ex. DE-066). Transit, the hospital workforce's commute, was cut, capped and placed under face-covering and exposure-control rules by the transit authorities and, from February 1, 2021, by federal order (Ex. FED-020; Ex. MET-DEN-045; Ex. MET-MSP-061; Ex. MET-STL-041).
The ecosystem
The six mechanisms
The Library's federal-ecosystem collection identifies six mechanisms by which orders addressed to others reached an employer, and each reached hospitals. Supply chain and borders: the Defense Production Act rules and designations, the export restrictions and the land-border notifications governed the market for protective equipment, respirators and drugs on every day of the period (Ex. FED-075 through Ex. FED-079; Ex. FED-074; Ex. ECO-A-071; Ex. FED-232 through Ex. FED-235). Workforce, schools and child care: the FFCRA mandate, the State paid-leave laws, the quarantine orders and the school orders removed staff from the building by law (Ex. FED-170; Ex. ECO-B-002; Ex. AGY-ST-LABOR-WORKPLACE-003; Ex. AGY-ST-LABOR-WORKPLACE-004; Ex. AGY-ST-LABOR-WORKPLACE-005). Travel and gatherings: the interstate traveler quarantines of New York, Connecticut, Hawaii and others confined travel nurses and locum physicians crossing State lines, and the gathering bans ended the industry's events (Ex. HI-003; Ex. ECO-C-031). The congresses, association meetings, continuing-education programs, hiring events and recurring gatherings of this industry that those orders disrupted, with the venue jurisdictions' instruments and the organizers' stated actions, are recorded in the Library's meetings records for this industry. Courts and public offices: the court closures reached the hospital's collections, guardianship and commitment work. Transit: the conveyance order and the transit agencies' rules conditioned every commute (Ex. FED-020; Ex. FED-051; Ex. FED-052). Health care as counterparty: for this industry the sixth mechanism runs inward, because the orders on nursing homes, physician practices, dental practices, home health agencies and laboratories were orders on the hospital's own referral, discharge and diagnostic network (Ex. FED-098; Ex. FED-156; Ex. FED-094).53 The mechanisms are applied in the interconnected-economy section below.
The standing duties
The duties beneath the orders
Beneath the emergency orders lay standing law that bound every hospital, health system and emergency medicine practice on every day of the six quarters, whether or not an order named it: the statutes that commanded every person to prevent and control communicable disease and every employer to furnish a safe and healthful workplace, the offense provisions that punished disobedience of health and emergency orders, and, in most States, the liability shields that protected only the complying business.54 Each is an order from an appropriate governmental authority on the Suspension Clause's own terms: a statute or rule that commands conduct is an order, whichever branch issued it, and the pandemic directives gave each duty its content.55 The three layers follow for seven States, New York, Ohio, Florida, New Hampshire, Washington, Texas and New Jersey, whose hospital orders this page sets out; the fifty-one-jurisdiction treatment is on the standing duties page.
Layer one: the orders' operating conditions
The first layer is the orders, whose verbs are commands. Texas: "all licensed health care professionals and all licensed health care facilities shall postpone all surgeries and procedures that are not immediately medically necessary" (Ex. TX-004), then resumption on certified conditions (Ex. TX-009). New Jersey: adult elective surgeries "are suspended in the State" (Ex. NJ-006), resumed under Health Department directives (Ex. NJ-016). Washington: "I hereby prohibit all hospitals ... from providing" non-urgent procedures (Ex. WA-015), and, in the Governor's reopening proclamation, "No employer may operate ... unless the employer ... complies with all public health authority orders and directives." New York: under the reopening executive orders, reopened entities "must be operated subject to the guidance promulgated by the Department of Health." Ohio resumed procedures on eight conditions (Ex. OH-019 ¶ 9) and commanded that "All businesses and operations shall continue to comply with Social Distancing Requirements" (Ex. OH-025); Florida permitted the prohibited procedures "only if" the facility had "the capacity to immediately convert additional facility-identified surgical and intensive care beds" for COVID-19 patients (Ex. SEC-01-065); New Hampshire's reopening emergency order commanded that "All businesses or other organizations operating within this State shall comply with the Universal Business Guidelines." Behind each stood a statute punishing its violation.56 A measure the Service calls "beyond the order" was, in each State, the order's own condition of operating.
Layer two: the standing statutes
The second layer commanded the same conduct before any order issued and after each lapsed. Texas states the duty on the person: "The state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease" (Health & Safety Code § 81.002, Ex. DUT-TX-001), and on the employer: "Each employer shall" provide "a place of employment that is reasonably safe and healthful," use "methods of sanitation and hygiene" and "take all other actions reasonably necessary" (Labor Code § 411.103, Ex. DUT-TX-013).57 New York and New Jersey command a workplace "operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein" and one "reasonably safe and healthful for employees" (Labor Law § 200, Ex. DUT-NY-013; N.J.S.A. 34:6A-3, Ex. DUT-NJ-009). Since 1974 no person in charge of an Ohio "place of public accommodation, amusement, resort, or trade" may "negligently fail to take reasonable measures to protect the public from exposure to the contagion" (R.C. 3701.81(C), Ex. DUT-OH-007). Florida makes violating "any requirement adopted by the department pursuant to a declared public health emergency" a second-degree misdemeanor (Ex. DUT-FL-001). New Hampshire makes disobedience of its communicable-disease chapter "a misdemeanor if a natural person, or ... a felony if any other person" (Ex. DUT-NH-006) and commands that "Every employer shall provide employees with safe employment" (Ex. DUT-NH-011).58 Over all of them lay the general duty clause: each employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm" (29 U.S.C. § 654(a)(1), Ex. DUT-FED-001), enforced by citation from September 2020.59
Layer three: the liability shields
The third layer is the shields, which fixed compliance with governmental standards as the standard of care. Texas protects a business unless the claimant proves it "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease," for actions commenced from March 13, 2020 (Ex. DUT-TX-015; Ex. DUT-TX-014). Florida protects only a defendant that "made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance" (Ex. DUT-FL-012). New York and New Hampshire conditioned their narrower immunities on compliance with law and orders (Ex. DUT-NY-016; Ex. DUT-NH-014); New Jersey shielded only health care professionals acting "in support of the State's response" or in good faith "to prevent the spread of COVID-19," and left every other business its full duty of care (Ex. DUT-NJ-007). Ohio's shield set a culpability floor and provided that an order or guideline "shall neither create nor be construed as creating a duty of care" (Ex. DUT-OH-020), so Ohio's compulsion rests on its statutes and orders; Washington enacted none, and there a statute's breach is evidence of negligence (Ex. DUT-WA-013).60 Each compliance-conditioned shield rests on one premise: compliance with the governmental health standards is what a hospital owed.
A recommendation among these instruments is treated as compulsory only through the instrument incorporating it: CMS's tiering recommendations through the State orders adopting them (Utah's order of March 23, 2020; Ex. AZ-015), its survey memoranda written in "should" through the infection-control condition of participation (Ex. SEC-01-006; Ex. FED-165), and the CDC's guidance through the general duty clause, against which OSHA directed citation from April 13, 2020 and cited from September 2020 (Ex. AGY-FED-LABOR-IMMIGRATION-020; Ex. LAW-487).61 A hospital that screened every entrant, distanced its waiting rooms, sanitized its units, excluded its exposed workers and required universal face coverings under the workplace infection-prevention regime was not choosing; it was complying.