Function by Function
Each of the eleven functions of a physician practice, outpatient clinic, behavioral health provider or allied health practice was the object of governmental orders in every quarter from the second quarter of 2020 through the third quarter of 2021, and the operation of each was partially suspended in the quarters and by the instruments stated below. The determination for each function is stated in the statutory words; the instruments are those of the layers and six quarters sections, cited by exhibit identifier; the quarter map on this page tabulates them.
CL. Clinical intake and the waiting room
In the second quarter of 2020 the procedure orders and stay-at-home orders terminated non-urgent intake and the resumption orders conditioned it on screening, distancing, masks and appointment-only scheduling (Ex. SEC-02-011; Ex. SEC-02-013; Ex. SEC-02-017; Ex. SEC-02-018; Ex. SEC-02-020; Ex. SEC-02-021; Ex. SEC-02-022; Ex. SEC-02-023; Ex. SEC-02-032; Ex. WA-032; Ex. KY-015; Ex. MA-060; Ex. NJ-067; Ex. NJ-068). In the third and fourth quarters of 2020 and the first quarter of 2021 the resumption conditions, the statewide and metropolitan face-covering orders, airborne-transmission controls on every indoor public space, and the State workplace standards governed the waiting room on every day (Ex. NJ-084; Ex. NJ-085; Ex. SEC-02-049; Ex. MA-061; Ex. WI-009; Ex. MET-PHX-023; Ex. MET-MSP-009; Ex. MET-SFO-006; Ex. SEC-02-047; Ex. WA-049; Ex. PA-022). In the second quarter of 2021 the health care face-covering requirements, infection-prevention controls, that every State preserved when it lifted its general orders governed it (Ex. NJ-050; Ex. MA-050; Ex. SEC-02-073), and from June 21, 2021 the OSHA standard governed it (Ex. SEC-02-001). In the third quarter of 2021 the OSHA standard's entry-control, screening, distancing and barrier requirements governed it on every day; the health care face-covering requirements of sixteen jurisdictions governed it, in thirteen of them on every day of the quarter, in Kentucky to September 7, in New Mexico universally from August 20 and in Nevada from July 30, New York's under Subpart 66-3 to August 27 and under 10 NYCRR 2.60 thereafter; and the indoor face-covering reinstatements of seven States and the District and the largest metros, airborne-transmission controls on every indoor public space, governed it from the dates named in the six quarters section (Ex. SEC-02-001; Ex. NY-073; Ex. WA-070; Ex. WA-078; Ex. OR-048; Ex. NM-068; Ex. NV-041; Ex. LA-038; Ex. SEC-02-051; Ex. DC-057; Ex. MET-LA-018; Ex. MET-SFO-010; Ex. MET-CHI-026; Ex. MET-PHL-019; Ex. MET-BOS-013; Ex. MET-STL-021; Ex. MET-MSY-029).212 The modifications the orders compelled were these: closure to non-urgent intake; screening at the door; distancing that reduced waiting-room seating by half or more; masks on staff and patients; appointment-only scheduling; the elimination of walk-in visits; the conversion of intake to telephone and telehealth. The operation of clinical intake and the waiting room was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the procedure orders, the stay-at-home orders, the resumption orders, the face-covering orders, the State workplace standards and the OSHA Healthcare Emergency Temporary Standard.
PR. Procedures and elective visits
In the second quarter of 2020 the procedure prohibitions of at least thirty-two States terminated the function outright and the resumption orders conditioned it (Ex. SEC-02-011; Ex. SEC-02-012; Ex. SEC-02-013; Ex. SEC-02-017; Ex. SEC-02-018; Ex. SEC-02-020; Ex. SEC-02-021; Ex. SEC-02-022; Ex. SEC-02-023; Ex. SEC-02-033; Ex. KY-015; Ex. SEC-02-031; Ex. SEC-02-032; Ex. WA-015; Ex. WA-032; Ex. SEC-02-048; Ex. SEC-02-049; Ex. SEC-02-058; Ex. SEC-02-070; Ex. OH-007; Ex. SEC-02-074; Ex. SEC-02-076; Ex. SEC-02-024; Ex. SEC-02-025; Ex. SEC-02-026; Ex. SEC-02-027; Ex. SEC-02-044; Ex. SEC-02-062; Ex. SEC-02-063; Ex. SEC-02-042; Ex. SEC-02-043; Ex. SEC-02-052; Ex. SEC-02-034; Ex. VT-018; Ex. MA-060; Ex. MD-040; Ex. MD-044; Ex. SEC-02-054; Ex. VA-008; Ex. WV-014; Ex. WV-023; Ex. WV-024; Ex. IN-011; Ex. NE-008; Ex. AK-007; Ex. AK-017; Ex. SEC-02-039; Ex. AZ-015; Ex. NM-007; Ex. NM-013; Ex. AL-011; Ex. AR-040; Ex. LA-043; Ex. LA-051; Ex. SEC-02-057; Ex. ME-005; Ex. NH-050; Ex. NH-051; Ex. DC-037; Ex. DC-039). In the third quarter of 2020 Texas re-prohibited the function in named counties and trauma service areas and the conditioned resumption orders governed it everywhere else (Ex. SEC-02-014; Ex. SEC-02-015; Ex. NJ-084; Ex. NJ-085). In the fourth quarter of 2020 and the first quarter of 2021 Texas, Pennsylvania, Nebraska, New Mexico, Massachusetts, Indiana and California re-imposed restrictions and the conditioned orders continued (Ex. SEC-02-015; Ex. SEC-02-016; Ex. SEC-02-037; Ex. PA-025; Ex. NE-021; Ex. NM-043; Ex. MA-066; Ex. IN-048; Ex. CA-026; Ex. WA-049). In the second quarter of 2021 the conditioned orders of sixteen States ran to the dates named in the six quarters section and Pennsylvania's order ran the whole quarter (Ex. SEC-02-023; Ex. SEC-02-032; Ex. OR-043; Ex. LA-047; Ex. PA-025; Ex. WV-063). In the third quarter of 2021 Pennsylvania's order ran to August 23, New Jersey's Directives, Washington's Proclamation 20-24.2, Maryland's directive and West Virginia's conditions ran the whole quarter, and the OSHA standard governed every procedural suite (Ex. PA-025; Ex. PA-101; Ex. NJ-084; Ex. NJ-085; Ex. WA-049; Ex. WV-063; Ex. SEC-02-001). The modifications the orders compelled were these: outright prohibition for four to ten weeks in 2020; capacity, PPE and testing conditions thereafter; re-prohibition and halving in the winter of 2020-21; screening, distancing and PPE conditions through the third quarter of 2021. The operation of procedures and elective visits was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the statewide procedure prohibitions, the conditioned resumption orders, the winter re-tightening orders, the New Jersey Directives, the Pennsylvania elective-reduction order, Washington's Proclamation 20-24.2, Maryland's directive, West Virginia's conditions and the OSHA Healthcare Emergency Temporary Standard.
DX. Diagnostics and laboratory
The procedure orders of the second quarter of 2020 covered non-urgent imaging, screening and diagnostic procedures; Michigan's laboratory prioritization order of March 23, 2020, Pennsylvania's reporting orders of October 13 and December 14, 2020, Indiana's control measures and their counterparts governed testing and reporting through the third quarter of 2021; the OSHA standard's log and reporting rules governed from June 21, 2021; and the FDA's respirator revocations effective June 30 and July 6, 2021 removed the lawful basis for the respirators laboratory staff wore (Ex. AGY-ST-HEALTH-SUBORDERS-093; Ex. AGY-ST-HEALTH-SUBORDERS-011; Ex. AGY-ST-HEALTH-SUBORDERS-009; Ex. AGY-ST-HEALTH-SUBORDERS-068; Ex. SEC-02-001; Ex. AGY-FED-HEALTH-OTHER-049; Ex. AGY-FED-HEALTH-OTHER-048; Ex. AGY-ST-HEALTH-SUBORDERS-061). The modifications the orders compelled were these: postponement of non-urgent diagnostics; prioritization of specimens; mandatory reporting of every result; recordkeeping under the OSHA standard; replacement of respirator stock. The operation of diagnostics and laboratory was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the procedure orders, the laboratory prioritization and reporting orders, the OSHA Healthcare Emergency Temporary Standard and the FDA revocations.
TM. Telehealth under waivers
The section 1135 blanket waivers, the interim final rules of March 30 and May 1, 2020, the OCR enforcement discretion of March 17, 2020, the DEA telemedicine permission and the SAMHSA take-home exception created the function, and the State parity, licensing and telehealth orders (Connecticut's EO 7G, Illinois' EO 2020-09 §§ 9 and 10 re-issued monthly, Florida's Department of Health orders, Pennsylvania's Department of State waivers continued by Act 21, Missouri's EO 20-04 and EO 21-09, Nebraska's EO 20-12 and EO 21-12, Arizona's EO 2020-22) shaped it through the third quarter of 2021 (Ex. SEC-02-005; Ex. FED-160; Ex. SEC-02-006; Ex. FED-090; Ex. SEC-02-007; Ex. FED-091; Ex. SEC-02-008; Ex. FED-194; Ex. AGY-FED-HEALTH-OTHER-001; Ex. AGY-FED-HEALTH-OTHER-009; Ex. SEC-02-009; Ex. SEC-02-059; Ex. SEC-02-050; Ex. IL-068; Ex. AGY-ST-HEALTH-BOARDS-001; Ex. AGY-ST-HEALTH-BOARDS-014; Ex. PA-092; Ex. MO-002; Ex. MO-020; Ex. NE-050; Ex. NE-068; Ex. AZ-013). The modification the orders compelled was the conversion of in-person visits to remote visits under conditions of platform, consent, prescribing, documentation and payment fixed by order; a function that did not exist in its 2021 form before the orders and that the Service's own Q&A-16 recognizes as a transition that itself constitutes a partial suspension where it takes more than two weeks.213 The operation of telehealth was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the orders that compelled the conversion and the waivers and orders that conditioned it; the orders that permitted remote operation are the orders that suspended in-person operation, and the Notice's comparable-operations sentence, which has no force of law, reaches by its own terms only an operation that can be continued "comparable to its operations prior to the closure" by telework, which an examination, a procedure, an injection, a specimen draw or a supervised therapy session cannot be; the Notice's own words confirm the result.
FD. Front desk and scheduling
The screening, distancing and appointment-only conditions of the resumption orders in 2020, the State workplace standards' screening and exposure-notification rules from the fourth quarter of 2020, the OSHA standard's entry-control and screening rules from June 21, 2021, and the vaccination-status verification and proof-of-vaccination regimes of the third quarter of 2021 governed this function (Ex. SEC-02-013; Ex. SEC-02-018; Ex. SEC-02-023; Ex. SEC-02-032; Ex. WA-032; Ex. SEC-02-047; Ex. SEC-02-001; Ex. SEC-02-046; Ex. SEC-02-019; Ex. SEC-02-051; Ex. SEC-02-030; Ex. OR-051; Ex. SEC-02-071; Ex. MET-NYC-017; Ex. MET-SFO-011; Ex. MET-MSY-029; Ex. MET-HNL-035). The modifications the orders compelled were these: pre-visit screening calls; screening at the door; staggered scheduling; the elimination of walk-in visits; the administration of vaccination-status records for staff. The operation of the front desk and scheduling was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the resumption orders, the State workplace standards, the OSHA Healthcare Emergency Temporary Standard and the vaccination-status orders.
OF. Billing and administration
The telework mandates of the stay-at-home orders in 2020 (New York's EOs 202.6 and 202.7; Pennsylvania's closure orders; California's EO N-33-20; Illinois' EO 2020-10; Michigan's EO 2020-21; Washington's Proclamation 20-25; Colorado's D 2020 017; Minnesota's EO 20-20), the payment rules of the interim final rules, the reporting orders, the State workplace standards' written-program obligations, the OSHA standard's plan, training, log and reporting obligations, New York's HERO Act plan and the recordkeeping the vaccination orders required governed this function (Ex. NY-004; Ex. PA-002; Ex. PA-006; Ex. WA-016; Ex. CO-012; Ex. MN-010; Ex. FED-090; Ex. FED-091; Ex. AGY-ST-HEALTH-SUBORDERS-011; Ex. SEC-02-047; Ex. SEC-02-001; Ex. ECO-B-120; Ex. AGY-ST-LABOR-WORKPLACE-011). The modifications the orders compelled were these: remote operation of billing and administration under mandate; new claims workflows for telehealth and waiver codes; written plans, logs and reports required by order. The operation of billing and administration was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the telework mandates, the payment and reporting orders, the State workplace standards and the OSHA Healthcare Emergency Temporary Standard.
SC. PPE and supplies
The Defense Production Act orders, the scarce-materials designation and its extensions to November 15, 2021, the FEMA allocation and export rule to June 30, 2021, New Mexico's PPE regulation, the resumption orders' PPE inventory conditions, the FDA authorizations and revocations and the OSHA standard's PPE requirements governed this function (Ex. FED-070; Ex. FED-071; Ex. FED-072; Ex. FED-074; Ex. ECO-A-070; Ex. ECO-A-071; Ex. SEC-02-010; Ex. FED-075; Ex. FED-077; Ex. FED-078; Ex. FED-079; Ex. NM-008; Ex. SEC-02-013; Ex. SEC-02-032; Ex. AGY-FED-HEALTH-OTHER-049; Ex. AGY-FED-HEALTH-OTHER-048; Ex. AGY-FED-HEALTH-OTHER-052; Ex. SEC-02-001). The modifications the orders compelled were these: allocation of the practice's supply to hospitals by order; export controls; inventory conditions on resumption; replacement of respirator stock on revocation; PPE use fixed by standard. The operation of PPE and supplies was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the Defense Production Act orders, the scarce-materials designation, the FEMA allocation and export rule, the resumption orders' inventory conditions, the FDA revocations and the OSHA Healthcare Emergency Temporary Standard.
HR. Hiring, credentialing and training
The licensure and credentialing orders of every State (Florida's Department of Health orders, California's DCA waivers, Pennsylvania's waivers and Acts 21 and 73, Georgia's EO 03.20.20.02, Maryland's Order 20-04-01-01, Ohio's EO 2020-05D, Maine's EO 35, North Dakota's EO 2020-05.1, Nebraska's EO 20-12, Missouri's EO 20-04, Kansas' EO 20-16 successors), the closure of examination and licensing offices under the stay-at-home orders, the OSHA standard's training and medical removal rules, the vaccination-or-testing conditions on the practice's own workforce in the third quarter of 2021 and New York's Executive Order 4 governed this function (Ex. AGY-ST-HEALTH-BOARDS-001; Ex. AGY-ST-HEALTH-BOARDS-002; Ex. AGY-ST-HEALTH-BOARDS-011; Ex. AGY-ST-HEALTH-BOARDS-014; Ex. AGY-ST-HEALTH-BOARDS-020; Ex. AGY-ST-HEALTH-BOARDS-021; Ex. AGY-ST-HEALTH-BOARDS-038; Ex. AGY-ST-HEALTH-BOARDS-039; Ex. AGY-ST-HEALTH-BOARDS-041; Ex. AGY-ST-HEALTH-BOARDS-043; Ex. PA-092; Ex. GA-004; Ex. SEC-02-061; Ex. SEC-02-055; Ex. ND-006; Ex. NE-050; Ex. MO-002; Ex. SEC-02-001; Ex. SEC-02-045; Ex. SEC-02-046; Ex. SEC-02-038; Ex. SEC-02-019; Ex. SEC-02-051; Ex. SEC-02-030; Ex. OR-051; Ex. SEC-02-071; Ex. MA-067; Ex. DE-064; Ex. CO-055; Ex. NV-055; Ex. MET-DEN-023; Ex. MET-LA-023; Ex. NY-070). The modifications the orders compelled were these: credentialing under waiver; hiring of out-of-State and inactive licensees under emergency permission; cancellation of training and examinations; from August 2021, the exclusion of unvaccinated or untested staff by dates fixed by order. The operation of hiring, credentialing and training was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the licensure orders, the stay-at-home orders, the OSHA Healthcare Emergency Temporary Standard and the vaccination-or-testing orders.
WF. Workforce availability
The stay-at-home orders, school and child-care closures and fourteen-day quarantine orders of 2020; the Families First leave mandates to December 31, 2020; the State workplace standards' exclusion rules from the fourth quarter of 2020; the conveyance order on every transit commute from February 1, 2021; the OSHA standard's medical removal rules from June 21, 2021; the school mask, quarantine and exclusion orders of the third quarter of 2021; and the vaccination-or-testing conditions that removed unvaccinated staff from the schedule governed this function (Ex. PA-006; Ex. AR-073; Ex. NH-064; Ex. FED-170; Ex. FED-171; Ex. FED-172; Ex. SEC-02-047; Ex. AGY-ST-LABOR-WORKPLACE-001; Ex. AGY-ST-LABOR-WORKPLACE-054; Ex. FED-020; Ex. SEC-02-001; Ex. PA-042; Ex. IL-040; Ex. NJ-055; Ex. RI-055; Ex. LA-053; Ex. NC-030; Ex. NC-032; Ex. SC-062; Ex. FL-032; Ex. KY-052; Ex. MET-DFW-028; Ex. MET-HOU-038; Ex. SEC-02-046; Ex. SEC-02-019; Ex. SEC-02-051; Ex. SEC-02-030; Ex. AGY-ST-LABOR-WORKPLACE-003; Ex. AGY-ST-LABOR-WORKPLACE-004; Ex. AGY-ST-LABOR-WORKPLACE-005; Ex. AGY-ST-LABOR-WORKPLACE-009). The modifications the orders compelled were these: staff confined to their homes; staff at home with children whose schools were closed by order; staff quarantined by order; staff removed from the workplace under the standards; staff excluded on vaccination status by dates fixed by order. The operation of workforce availability was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the stay-at-home, school, quarantine and leave orders, the State workplace standards, the conveyance order, the OSHA Healthcare Emergency Temporary Standard and the vaccination-or-testing orders.
CB. Patients, referral sources, employers and payers
The stay-at-home orders and gathering limits on the practice's patients in 2020; the face-covering, curfew and travel-quarantine orders through 2021; the hospital procedure orders on the practice's referral sources and proceduralists; the CMS facility rules and State facility orders on the nursing homes; the school orders on the pediatric patients; the court orders on the practice's litigation counterparties; the eviction orders on the landlords; the payment rules of the interim final rules on the payers; and the proof-of-vaccination regimes on the patients' movements governed this function (Ex. NY-005; Ex. HI-003; Ex. AZ-066; Ex. AZ-082; Ex. FED-092; Ex. FED-168; Ex. FED-156; Ex. FED-094; Ex. OH-049; Ex. MD-059; Ex. NY-135; Ex. ID-064; Ex. AK-031; Ex. TX-040; Ex. KY-058; Ex. VA-041; Ex. TN-050; Ex. IA-056; Ex. MI-080; Ex. MN-053; Ex. SC-054; Ex. WA-090; Ex. FED-302; Ex. FED-298; Ex. FED-025; Ex. FED-026; Ex. ECO-C-081; Ex. ECO-C-091; Ex. ECO-C-084; Ex. ECO-C-101; Ex. FED-090; Ex. FED-091; Ex. MET-NYC-017; Ex. MET-SFO-011; Ex. MET-MSY-029; Ex. MET-HNL-035). The modifications the orders compelled were these: patients confined, masked, quarantined or excluded from venues by order; referral sources closed or capped by order; facilities closed to rounds or conditioned by order; courts closed or remote by order; payers' rules changed by order. The operation of the patient, referral, employer and payer relationships was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the orders on the practice's counterparties, which Q&A-12 of the Notice and the United States' representation to the Ninth Circuit confirm are orders due to which an employer's operation is suspended.214
MK. Marketing and outreach
The gathering limits of every State in 2020 and of Hawaii, Colorado and the metropolitan orders in 2021; the closure of the schools, employers, senior centers and venues at which outreach occurs; and the proof-of-vaccination regimes that governed the venues in the third quarter of 2021 governed this function (Ex. SEC-02-024; Ex. MET-SEA-008; Ex. IL-004; Ex. HI-025; Ex. CO-041; Ex. MET-HNL-035; Ex. MET-SFO-011; Ex. MET-MSY-029; Ex. MET-NYC-017). The modifications the orders compelled were these: cancellation of health fairs, screenings, employer wellness events, school programs and community education; conversion to remote outreach. The operation of marketing and outreach was partially suspended in the second, third and fourth quarters of 2020 and the first, second and third quarters of 2021 because of the gathering limits, the venue closures and the proof-of-vaccination regimes.