How a hospital, health system or emergency medicine practice operates
A hospital is not one operation but many, and the orders of 2020 and 2021 reached them separately, by name and by date. The Suspension Clause asks whether "the operation of the trade or business" was fully or partially suspended, and a partial suspension is "a temporary delay, interruption, or termination of a portion an employer's business."1 The twelve functions below are the portions. Each is described as it operated before March 2020, and each is matched to the categories of orders that delayed, interrupted or terminated it; the instruments themselves, with dates and exhibit identifiers, are stated in the layers and quarters sections that follow and applied function by function after them. Every instrument cited in this section is cited again there with its issuer and date.
ED: emergency department and intake
The emergency department is the hospital's front door and, under the Emergency Medical Treatment and Labor Act, its unconditional obligation: every person who presents must be screened and, if in an emergency condition, stabilized. The orders reached it from three directions. CMS's section 1135 waivers redefined where the screening obligation could be discharged, permitting off-campus screening sites and alternate-care locations on stated terms, so that the intake function was reorganized by federal instrument from March 2020 (Ex. SEC-01-010). The infection-control orders of the States and, from June 21, 2021, the federal Healthcare Emergency Temporary Standard required patient screening and management at every point of entry, physical distancing, barriers and the limitation of aerosol-generating procedures to airborne infection isolation rooms, each a compelled reorganization of triage (Ex. SEC-01-001, § 1910.502(d), (g), (h), (i)). The stay-at-home orders addressed to the public removed the emergency department's patients: visits fell by 42 percent in the four weeks after March 29, 2020, a limitation of commerce the orders imposed on the patient base the department serves.2 The crisis standards of care activated in Idaho and Alaska in September 2021 changed the standard by which every emergency department in those States triaged (Ex. SEC-01-100; Ex. AK-031).
IP: inpatient units and surge capacity
Inpatient units are the hospital's beds, its intensive care and its nursing staff. The orders commanded their reorganization in terms. New York directed every general hospital to increase its bed capacity by fifty percent and to submit a plan to the Department of Health (Ex. NY-005; Ex. SEC-01-040); Texas required every hospital to reserve twenty-five percent of its capacity for COVID-19 patients as the condition of resuming any procedure, then fifteen percent from May 1, 2020 and ten percent from September 17, 2020 to March 10, 2021 (Ex. TX-009; Ex. TX-012; Ex. TX-024); Iowa required every hospital to reserve thirty percent of its intensive-care and medical-surgical beds (Ex. IA-011); Kentucky required thirty percent of intensive-care and total beds as the condition of the second phase of its resumption (Ex. KY-015; Ex. KY-029); Arizona conditioned any exemption from its elective ban on occupancy of no more than eighty percent (Ex. AZ-015); San Antonio required every licensed hospital in the City to reserve ten percent of its capacity (Ex. MET-SAT-051); Pennsylvania's reduction order was triggered by regional bed availability below ten percent (Ex. PA-025); Maryland's directive of June 15, 2021 carried hospital surge-capacity duties to December 31, 2021; and CMS made the daily reporting of beds, intensive-care occupancy, ventilators and staffing a condition of participation (Ex. SEC-01-004). Every isolation room held empty for air changes, every unit converted to a COVID-19 cohort and every bed held in reserve was a portion of the inpatient operation interrupted by order.
SX: surgery and elective procedures
Surgery and procedures are the hospital's largest service line by revenue and the one the orders named first. Between March 15 and April 10, 2020, the Governors, health commissioners and health officers of more than thirty States ordered every hospital to postpone, cancel or suspend its elective, non-urgent or non-essential surgeries and procedures (the State-by-State treatment below); the American College of Surgeons' trackers quote the operative text of thirty-one of those instruments as of April 21, 2020 (Ex. SEC-01-030). Resumption was by order and on conditions: capacity reserves, protective-equipment self-sufficiency, patient testing, attestation and phased volume caps, including Kentucky's fifty percent of pre-shutdown volume (Ex. KY-015; Ex. KY-029; Ex. NJ-016; Ex. SEC-01-065; Ex. SEC-01-069; Ex. SEC-01-067). The winter of 2020-21 brought a second round: Texas's regional trigger (Ex. TX-024; Ex. SEC-01-050), Pennsylvania's fifty percent reduction on notice (Ex. PA-025), California's hospital surge orders (Ex. CA-026), Nebraska's pause (Ex. NE-023), Iowa's limits of November 17, 2020, Indiana's directive and its reprioritization successors (Ex. IN-048; Ex. IN-051), Mississippi's hospital rule of October 21, 2020 and its December re-imposition (Ex. MS-040), New Mexico's restrictions (Ex. NM-043), Massachusetts's December order (Ex. MA-065; rescinded by Ex. MA-066) and Washington's Proclamation 20-24.2 (Ex. WA-049). This is the function the Notice's Example 4 describes and the function Tri-State found suspended.3
OC: outpatient clinics and diagnostics
Hospital-based clinics, imaging, laboratories and ambulatory surgery centers were reached by the same elective orders, which named "ambulatory surgery centers," "diagnostic and treatment centers," "outpatient clinics" and "office-based surgery practices" (Ex. NY-005; Ex. SEC-01-068; Ex. FL-009; Virginia's Order of Public Health Emergency Two), by the CMS recommendation to "[r]eschedule non-urgent outpatient visits as necessary" that State orders converted into law (Ex. SEC-01-006; Utah's State Public Health Order of March 23, 2020), and by the metro and State orders that converted clinics to testing and vaccination sites, limited waiting rooms and required telehealth "to the greatest extent possible" (Ex. MET-DET-001 at 11-12). Tri-State's Minor Care Center, converted to testing and vaccination by the Proclamation's terms, is this function.4
VS: visitation and access
Visitation is a function of the hospital's operation as a place, and the orders terminated it: Michigan on March 14, 2020 (Ex. MI-003), Massachusetts from March 17, 2020 (Ex. MA-057), Alabama from March 19, 2020 (Ex. AL-005), Alaska by Health Mandate 005 as revised April 7, 2020 and, from April 20, 2020, by the revised Mandate 015 (Ex. AK-007; Ex. AK-017), Utah to one companion per patient by its order of April 21, 2020, and every San Diego County hospital from March 13, 2020 to June 15, 2021 (Ex. MET-SAN-002; Ex. MET-SAN-003; Ex. MET-SAN-021; Ex. MET-SAN-022); New Hampshire's prohibition of visitors at every nursing, assisted-living, long-term-care and residential-care facility from 11:59 p.m. on March 15, 2020 (Ex. NH-001 ¶ 3) and New Jersey's Department of Health memorandum barring resident visitors at every long-term care facility from March 16, 2020 (Ex. NJ-063) closed the post-acute settings to which the hospital discharges (CB, below). Restoration was phased by directive through 2020 and 2021 (Ex. NJ-071; Ex. NJ-074; Ex. NJ-078; Ex. RI-090), and in the third quarter of 2021 California conditioned every indoor hospital visit on proof of vaccination or a negative test (Ex. SEC-01-060), New York and Oregon imposed by regulation an airborne-transmission control on every health care setting, universal face coverings of every person within it, with the operator responsible for compliance (Ex. NY-073; Ex. NY-074; Ex. SEC-01-110), and the vaccination-documentation bans of Florida, Texas, Arkansas and Georgia fixed what a hospital could ask of the visitors it admitted (Ex. SEC-01-082; Ex. SEC-01-052; Ex. SEC-01-083; Ex. SEC-01-084).
IC: infection control
Infection control comprises screening, testing, protective equipment, isolation and, from July 2021, staff vaccination mandates. The orders made each of them compulsory and specified their terms: temperature and symptom screening of every person entering (Utah's order of April 21, 2020; Ex. AR-035; Ex. MET-RIV-022); pre-procedure testing of every patient and of exposed staff (Ex. NY-019; Ex. AZ-015; Ex. NJ-066); the federal standard's written plan, airborne infection isolation rooms, barriers, ventilation, medical removal of exposed employees and paid vaccination leave (Ex. SEC-01-001, § 1910.502(c), (g), (i), (k), (l), (m)); and the vaccination orders of thirteen jurisdictions with deadlines inside or immediately after the third quarter of 2021 (stated with dates in the quarters section). Tri-State held that "the required protocols and procedures to comply with the Proclamation" were the order's effects, not the disease's.5
SC: supply chain
A hospital's supply of protective equipment, drugs and ventilators was placed under federal allocation by rule from April 7, 2020 to June 30, 2021 (Ex. SEC-01-013; Ex. FED-077; Ex. FED-078), under anti-hoarding designations renewed through November 15, 2021 (Ex. FED-074; Ex. ECO-A-071), under State inventory and reporting orders (Minnesota's inventory and reporting order of March 25, 2020; Ex. NJ-006 (inventory of protective equipment); Pennsylvania's order of March 24, 2020 as amended July 10, 2020, recited in Ex. PA-044), and under resumption conditions that forbade a hospital resuming elective procedures from drawing on public stockpiles (Ex. AZ-015; Ex. SEC-01-065; Ex. LA-043). The orders limited the commerce in which every hospital bought.
HR: credentialing, travel nurses and training
The orders reached the hospital's workforce pipeline at both ends. Section 1135 waivers and State licensing suspensions redefined who could be credentialed and how (Ex. SEC-01-010; Ex. WA-023; Ex. ID-071; Ex. IN-011; Ex. RI-013); the entry proclamations and consular suspensions kept foreign-trained clinicians out (Ex. FED-200; Ex. FED-207; Ex. FED-208); the federal standard imposed training duties by July 21, 2021 (Ex. SEC-01-001, § 1910.502(n)); and the vaccination orders of the third quarter of 2021 required every hospital to verify, exempt, test or separate every member of its staff by dates inside or immediately after the quarter (Ex. CA-030; Ex. WA-077; Ex. NY-071; Ex. NJ-056; Ex. SEC-01-078; Ex. RI-072; Maine's emergency rule of August 12, 2021; Ex. OR-046; Ex. CO-055; Ex. ECO-B-056; Ex. DE-047; Ex. NM-071). In Texas, Montana and Arkansas the orders ran the other way, forbidding public hospitals or all employers to condition employment on vaccination, and Florida and Georgia forbade any business or State service provider to require vaccination documentation of the patrons and persons it served (Ex. SEC-01-051; Ex. SEC-01-081; Ex. SEC-01-083; Ex. SEC-01-082; Ex. SEC-01-084).
OF: administration and telework
The hospital's administrative operation, its billing, scheduling, compliance and executive offices, was reached by the stay-at-home and telework orders of every State in 2020, New York's Executive Orders 202.6 and 202.8 among them (Ex. NY-002; Ex. PA-002; Ex. OR-007), by the office-occupancy caps of the New York Forward office guidance (Phase Two, May 29, 2020) that governed administrative offices until May 19, 2021, by the daily reporting duties of the CMS condition of participation and the State reporting orders (Ex. SEC-01-004; Ex. PA-041; Ex. OH-072), by the attestation, plan and exemption-processing duties of the resumption and vaccination orders (Ex. MA-060; Ex. NJ-016; Ex. WA-077), and by the federal standard, which excepts only "well-defined hospital ambulatory care settings where all employees are fully vaccinated" and off-site billing (Ex. SEC-01-001, § 1910.502(a)(2)).
WF: workforce availability
The orders removed the hospital's workers from the building by law: the quarantine and isolation orders of the metros and the isolation and quarantine directions of New Hampshire's Department of Health and Human Services (Ex. MET-SAN-024; Ex. MET-SEA-004; Ex. MET-STL-067; Ex. NH-064), Michigan's COVID-19 Employment Rights Act, 2020 PA 238, retroactive to March 1, 2020, the FFCRA leave mandate through December 31, 2020 (Ex. FED-170; Ex. ECO-B-002), the federal standard's mandatory medical removal with pay (Ex. SEC-01-001, § 1910.502(l)), school closures and the school infection-prevention orders of the 2021-22 year, universal masking among their controls, that governed the workforce's children, the conveyance order, an airborne-transmission control enforced by TSA security directive that made face coverings a condition of every commute by bus, rail and air (Ex. FED-020), and the vaccination orders whose separation dates fell inside the third quarter of 2021.
CB: patients and payers
The hospital's counterparties, its patients, its post-acute discharge destinations and its payers, were themselves under orders: the stay-at-home orders confined the patient base in every State in the spring of 2020 (held State by State in the Library); nursing-home and long-term-care admission and visitation orders governed every discharge from March 2020 through the third quarter of 2021 (Ex. NH-001 ¶ 3; Ex. NJ-063; Ex. NJ-064; Ex. FED-156; Michigan's residential-care order of May 21, 2021; Ex. LA-050); the long-term-care vaccination rule of May 21, 2021 and the testing orders of Ohio conditioned every post-acute placement (Ex. FED-094; Ex. OH-049); and Medicare's payment rules were rewritten by interim final rule four times (Ex. FED-090; Ex. FED-091; Ex. FED-092; Ex. FED-093). An order on the counterparty is an order limiting the commerce between it and the hospital.
MK: community programs and events
Hospitals run health fairs, screenings, blood drives, classes, fundraisers, board and medical-staff meetings and community education, each a group meeting. The gathering prohibitions of every State and metro from March 2020 terminated them (Ex. NY-005 (gatherings of any size); Ex. MET-DEN-005; Ex. MET-SFO-001), the caps of 2020 and 2021 limited them, and the third-quarter 2021 metro orders that attached masked-entry, proof-of-vaccination and capacity conditions to every indoor venue and event conditioned them (Ex. MET-NYC-017; Ex. MET-MSY-029; Ex. MET-SFO-011; Ex. MET-HNL-037).