Physician Practices and Outpatient Care

The Governmental Orders by Layer

Between March 2020 and September 2021 the operations of physician practices, outpatient clinics, behavioral health providers and allied health practices in the United States were the object of governmental orders at every level of government that has power to issue one: the President and the federal agencies; the governors, State health officers and licensing boards of all fifty States and the District of Columbia; the health officers of the largest counties and cities; the tribal governments; the territorial governments; and the courts, school boards, transit authorities and hospitals whose orders governed the counterparties on which a practice depends. This section lays those orders out layer by layer, with the exhibit identifiers of the Library, so that the Service's premise, that no order of an appropriate governmental authority reached this industry, can be tested against the record rather than against the Service's recollection. The orders existed. They were issued by authorities with power over the commerce, travel and group meetings they limited, which is what "appropriate" means. They limited commerce, travel and group meetings in the statutory sense. And they operated on the eleven functions of the operations section in the manner the six quarters and function-by-function sections trace quarter by quarter and function by function.

The universe

The count

The Library's master index, as compiled on September 28, 2026, carried 11,539 records: 275 legal authorities and litigation-record documents (the LAW and GOV series) and 11,264 governmental instruments, of which 10,883 are graded from a primary source or a confirmed secondary source and are the only instruments this analysis cites by name, and 10,451 are held as exhibit files. Of those instruments, the sector file for this industry isolates seventy-eight that name health care providers, procedures, facilities or licensees in their operative clauses, and the State and metro collections supply the general orders, the stay-at-home orders, the workplace orders and the counterparty orders that governed the same employers without naming them.¹⁶ The scale of the universe is itself a fact the Service must confront. By the Centers for Disease Control and Prevention's own count, forty-two States and territories issued mandatory stay-at-home orders between March 1 and May 31, 2020, reaching 2,355 of the nation's 3,233 counties, and "most jurisdictions issued multiple orders"; the COVID AMP database records more than 20,000 United States national and State policy measures from January 2020, 95 percent of them issued before November 23, 2021, and about 8,000 county measures; the Department of Health and Human Services' HealthData.gov dataset records 4,218 State and county policy-order entries between March 23, 2020 and August 31, 2021; and Ballotpedia's compilation of Council of State Governments data records 2,065 executive orders of governors and State agencies between February and June 29, 2020, before four of the six claimable quarters had begun.¹⁷ The Kaiser Family Foundation's State-action tables show thirty-five States with an active COVID-19 emergency declaration on July 2, 2021 and twenty-five on September 21, 2021, and nine States with a statewide mask requirement in force on July 2, 2021 rising to eleven on September 21, 2021.¹⁸ The question is not whether orders existed. It is whether the Service is entitled to treat more than ten thousand indexed and graded governmental instruments as though they were none.

Two features of the universe

Two features bear on this industry in particular. First, the orders that reached physician practices were of two kinds: the general orders that reached every employer (stay-at-home, closure of businesses not deemed life-sustaining, gathering limits, face-covering and other workplace infection-prevention requirements, travel quarantines, workplace standards), and the sector orders that named health care providers directly (postponement of elective and non-urgent procedures, prioritization of PPE, telehealth and licensing modifications, facility infection-control requirements, vaccination-or-testing requirements for health care workers). The general orders reached the practice's patients, referral sources and workforce; the sector orders reached the practice itself. Second, the sector orders were issued disproportionately by health officers, health departments and licensing boards acting under delegated statutory authority rather than by governors, and the Service's practice of looking only for a governor's executive order therefore misses the instruments that did the most work in this industry. The Notice itself lists "orders, proclamations, or decrees from the Federal government or any State or local government" and names "a local health department" as an issuing authority.¹⁹ The Service is held to that.

The federal layer

The predicates

On January 31, 2020 the Secretary of Health and Human Services determined that a public health emergency existed nationwide, and renewed that determination at ninety-day intervals through the whole of the period, including the renewal of July 19, 2021 that carried the emergency through October 17, 2021.²⁰ On March 13, 2020 the President declared a national emergency under the National Emergencies Act, and the same day approved emergency declarations under the Stafford Act for every State, tribe and territory; the national emergency was continued by the Notice of February 24, 2021, and the Stafford Act cost share, set at 100 percent in February 2021, was continued at that level through December 31, 2021, including for the Governors' use of the National Guard, by the Presidential Memorandum of August 17, 2021.²¹ These are the predicates on which every federal instrument that follows rests. This analysis treats them as predicates and treats as orders the instruments issued under them; where a proclamation itself limited commerce, travel or group meetings in its operative paragraphs, it is treated as an order for the reason the answers section states.

The second quarter of 2020: the sector orders

The federal layer in the second quarter of 2020 reached this industry through four channels. The Centers for Medicare and Medicaid Services published its Non-Emergent, Elective Medical Services, and Treatment Recommendations on March 18, 2020 and updated them on April 7, 2020, directing the postponement of non-emergent procedures; the recommendations were the template that the State orders described below made mandatory, and CMS superseded them on April 19, 2020 with its "Opening Up America Again" recommendations for the phased resumption of non-COVID-19 care.²² The blanket waivers under section 1135 of the Social Security Act, retroactive to March 1, 2020, and the two interim final rules of March 30 and May 1, 2020 rewrote the conditions under which a Medicare-participating practice could operate: they permitted telehealth from the patient's home and the practitioner's home, permitted audio-only evaluation and management services, waived the site-of-service and originating-site requirements, permitted supervision by telecommunication, and set the payment conditions that made the telehealth function of the operations section possible at all.²³ The Office for Civil Rights announced on March 17, 2020 that it would exercise enforcement discretion under HIPAA for telehealth conducted over non-public-facing remote communication products, and the Drug Enforcement Administration permitted the prescribing of controlled substances by telemedicine without a prior in-person evaluation for the duration of the emergency; the Substance Abuse and Mental Health Services Administration permitted blanket take-home doses for opioid treatment programs from March 16, 2020.²⁴ Each of these is a permission that presupposes a prohibition: a practice that could see its patients in person had no use for a waiver permitting it to see them by telephone.

The second quarter of 2020: the supply-chain orders

The supply-chain orders reached the practice's inputs. Executive Order 13909 of March 18, 2020 invoked the Defense Production Act for health and medical resources; Executive Order 13910 of March 23, 2020 authorized the designation of scarce materials and the prohibition of hoarding; Executive Order 13911 of March 27, 2020 delegated the allocation authority to the Secretary of Health and Human Services.²⁵ The Secretary's Notice of Designation of Scarce Materials of March 25, 2020 listed N95 respirators, surgical masks, gloves, gowns, face shields, ventilators and disinfectants, and was extended through November 15, 2021 by the notices of February 1 and July 7, 2021.²⁶ The Federal Emergency Management Agency's temporary final rule on the prioritization and allocation of scarce health and medical resources, published April 10, 2020 and effective April 7, 2020, prohibited the export of covered PPE without FEMA's approval and authorized FEMA to allocate the covered materials for domestic use; it was extended through June 30, 2021 by the rules of August 10 and December 31, 2020, with additional exemptions noticed on June 11, 2021.²⁷ Those instruments determined where the PPE went, and a private physician practice was not where it went; the supplies function (SC) was suspended by them in the plainest sense.

The second through fourth quarters of 2020: the workforce and travel orders

The Families First Coronavirus Response Act mandated paid sick leave and expanded family leave for employers with fewer than 500 employees from April 1 through December 31, 2020, and the Department of Labor's temporary rules of April 1 and September 11, 2020 implemented the mandates; the health care provider exclusion was an election, not a rule, and the revised rule of September 11, 2020, effective September 16, confined it to employees who provide or directly support patient care, naming billers, records managers and human resources personnel as outside it, so that a practice's front-desk, billing and administrative staff were within the leave mandates for the remainder of 2020.²⁸ The travel proclamations of January 31 and February 29, 2020 suspended entry of non-citizens from China and Iran; the proclamations of March 11 and March 14, 2020 suspended entry from the Schengen Area, the United Kingdom and Ireland, and the proclamation of May 24, 2020 from Brazil; Proclamation 10143 of January 25, 2021 continued those suspensions and added South Africa, and Proclamation 10199 of April 30, 2021 added India; all remained in force until their revocation on November 8, 2021; the land borders with Canada and Mexico were closed to non-essential travel by monthly notifications through the whole of the third quarter of 2021.²⁹ The CDC's conveyance order of January 29, 2021, effective February 1, 2021, required a face covering of every person on every conveyance and at every transportation hub "until further notice," an airborne-transmission control on the whole transit system, and the Transportation Security Administration's security directives announced April 30 and August 20, 2021 and effective May 12 and September 14, 2021 imposed the same requirement on surface transportation through January 18, 2022.³⁰ These orders reached the patients who travel to a practice and the international patients, locum tenens physicians and visiting fellows who could not enter.

The first through third quarters of 2021: the workplace orders

Executive Order 13991 of January 20, 2021 imposed workplace infection-prevention requirements, masks and physical distancing, in federal buildings and on federal lands, and Executive Order 13998 of January 21, 2021 directed the face-covering requirement for domestic and international travel; OMB Memorandum M-21-15 of January 24, 2021 capped federal building occupancy at 25 percent until M-21-25 of June 10, 2021 lifted it.³¹ The Safer Federal Workforce Task Force reinstated face coverings in federal buildings on July 29, 2021 as one of the infection-prevention controls of its model safety principles, required a Certification of Vaccination form from August 6, 2021, and the President's Executive Orders 14042 and 14043 of September 9, 2021 required vaccination of federal contractors and federal employees, with the Task Force's determination of September 24, 2021 setting the contractor deadlines.³² The Department of Defense restricted personnel movement and travel under the Secretary's memorandum of March 15, 2021, in force "until further notice," with the Department's weekly status updates announcing the installations under restriction (230 as of September 27, 2021), required face coverings at all installations from July 28, 2021 as an installation infection-prevention control alongside those movement and travel restrictions, and mandated vaccination of the armed forces on August 24, 2021.³³ The Department of Veterans Affairs mandated vaccination of its Title 38 health care personnel on July 26, 2021 and extended the mandate on August 12, 2021.³⁴ Each of these reached a private practice through the workforce (reservists, National Guard members, federal-contractor spouses), through the counterparties (federal buildings that house clinics under contract, VA community-care referrals), and through the labor market in which the practice hired.

The third quarter of 2021: the health care standard

The Occupational Safety and Health Administration's COVID-19 Healthcare Emergency Temporary Standard, published June 21, 2021 with compliance dates of July 6 and July 21, 2021, is the single most consequential federal instrument for this industry in the whole period, and it is addressed in full in the third quarter of 2021 section below. Here it is enough to record what it is: a standard, issued under 29 U.S.C. § 655(c), that applied to every "setting where any employee provides healthcare services or healthcare support services," that required a written COVID-19 plan, patient screening and management, standard and transmission-based precautions, PPE, physical distancing of six feet, physical barriers at fixed work locations, cleaning and disinfection, ventilation, health screening and medical management of employees, paid medical removal, vaccination leave, training, recordkeeping and reporting, and that excepted a non-hospital ambulatory care setting only if "all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter."³⁵ OSHA's enforcement directive of June 28, 2021 set the inspection procedures for the standard, and the Revised National Emphasis Program of July 7, 2021 targeted health care employers for programmed inspections in place of the March 12, 2021 program.³⁶ CMS's interim final rule published May 13, 2021, effective May 21, 2021, required long-term care facilities and intermediate care facilities to educate and offer vaccination and to report vaccination status; the CMS survey memoranda of the period governed visitation and testing in the nursing homes to which a practice's geriatricians, podiatrists and psychiatrists made rounds.³⁷ The Food and Drug Administration revoked the decontamination-system authorizations effective June 30, 2021 and the imported non-NIOSH-approved respirator authorization effective July 6, 2021, publishing the revocations at 86 Fed. Reg. 48712 (Aug. 31, 2021), with the consequence that the substitutes on which practices had relied in 2020 could no longer lawfully be used.³⁸ The federal courts' general orders governing the courthouses in which a practice's physicians testified, and in which its collection actions were heard, are addressed with the counterparties below.³⁹

What the federal layer establishes

The Service's position, stated in Chief Counsel's memorandum of October 18, 2023 on OSHA's communications and carried into its letters, is that federal instruments were guidance and recommendations and that only mandatory State and local orders count. Four answers. First, the instruments listed above were not recommendations: the section 1135 waivers, the interim final rules, the DPA orders, the PPE allocation and export rules, the FFCRA mandates, the travel proclamations, the conveyance order, the security directives, the federal-workplace orders, the ETS and the CMS vaccination rule were binding on those they addressed. Second, the CMS recommendations of March 18 and April 7, 2020 were made mandatory by the State orders that adopted them, and the statute asks whether the operation was suspended due to orders, not whether the first instrument in the chain was binding on its own. Third, the Notice's own list of qualifying orders begins with "orders, proclamations, or decrees from the Federal government," and Q&A-10's Example 1 treats a State order that adopts federal guidance as an order.⁴⁰ Fourth, the Chief Counsel memorandum on which the position rests excludes the Healthcare Emergency Temporary Standard from its own conclusion in its first footnote, states that an employer "may be eligible" where "an executive order from a Governor" made the workplace protocols mandatory, and says of itself that it "may not be used or cited as precedent"; the Service's own memorandum thus leaves the federal standard that governed every clinic in the third quarter of 2021 outside the position the letters take. The Service is free to argue the weight of a federal recommendation. It is not free to say the federal layer did not exist.

The fifty States and the District of Columbia

The pattern

The State layer followed one pattern in all fifty States, with differences of date, instrument and duration that the State-by-State table on this page records. Between March 15 and April 10, 2020 at least thirty-two States issued an instrument that prohibited, postponed or conditioned elective and non-urgent medical, surgical and dental procedures, twenty-eight of them on or before April 1, 2020, and every State that did not issue such an instrument, and the District of Columbia, issued a stay-at-home or closure order whose exemption for health care was conditioned on the postponement of non-urgent care or whose gathering and distancing rules applied inside the clinic.⁴¹ Between April 20 and June 1, 2020 the procedure prohibitions were converted into phased resumption orders that conditioned the resumption on PPE inventories, testing, distancing, capacity limits and reporting. Between June 2020 and the end of the year the general orders (face-covering and other exposure-control requirements, gathering limits, capacity, travel quarantines) continued in every State and the sector orders continued in the States identified below; in the winter of 2020-21 Texas, Pennsylvania, Nebraska, New Mexico, Massachusetts, Indiana and California re-imposed procedure restrictions on hospitals and health systems. In the first half of 2021 the general orders were lifted on dates that ranged from March 10, 2021 (Texas) to July 1, 2021 (Minnesota, Georgia, Maryland) and beyond, and in the third quarter of 2021 a new generation of health-care-specific instruments issued in California, New York, New Jersey, Illinois, Washington, Oregon, Rhode Island, Connecticut, Massachusetts, Maine, Maryland, Delaware, Colorado, Nevada, New Mexico, Kentucky, Louisiana and the District of Columbia, with counter-orders in the preemption States that are themselves orders. The instruments are set out here by region.

The Northeast

Connecticut's Executive Order 7G of March 19, 2020 modified the telehealth and licensing rules under which every Connecticut practice operated, and Connecticut's Department of Public Health carried a universal-masking rule for health care settings, an infection-prevention requirement on every clinical setting, from May 19, 2021 until the DPH order of August 7, 2021 superseded it; Executive Orders 13, 13A, 13B, 13D, 13F and 13G of July 19 through September 10, 2021 reinstated indoor face-covering requirements and required vaccination or testing of State employees and of the staff of long-term care facilities and schools, exposure-control requirements that ran through September 30, 2021 and beyond.⁴² Maine's Executive Order 16 FY 19/20 of March 20, 2020 imposed emergency measures on health care providers and facilities, and its § I(F) ran to August 30, 2021; Executive Order 19 FY 19/20 of March 24, 2020 closed the public-facing operations of businesses not deemed essential; Executive Order 35 FY 19/20 of April 6, 2020 modified licensure; Executive Order 49 FY 19/20 of April 29, 2020 conditioned every reopening under the Restarting Plan on compliance with a COVID-19 Prevention Checklist, and the Department of Health and Human Services' checklist of May 12, 2020 was the condition on which health care resumed; Executive Order 40 FY 20/21 of June 30, 2021 scheduled the expiration of the remaining orders; and the emergency rule of August 12, 2021, 10-144 C.M.R. ch. 264, required vaccination of health care workers, with the final dose due by September 17, 2021 and exclusion from the worksite of unvaccinated staff from October 1, 2021.⁴³ Massachusetts' Commissioner of Public Health ordered the postponement of non-essential elective invasive procedures on March 15, 2020, effective March 18; the order of May 18, 2020 superseded it with a phased resumption; the order of June 24, 2020 continued the conditions; the order of December 7, 2020, effective December 11, curtailed elective procedures again through the winter until the rescission of March 1, 2021; COVID-19 Order No. 13 of March 23, 2020 closed businesses not deemed essential; the face-covering order of May 28, 2021 and the reissuance of June 14, 2021 continued the face-covering requirement in health care settings, one of the infection-prevention controls those settings carried; and Public Health Emergency Order No. 2021-4 of August 4, 2021, Executive Order 595 of August 19, 2021, 101 CMR 23.00 of August 13, 2021 and 105 CMR 159.000 of September 8, 2021 required vaccination of long-term care staff, executive-branch employees, home care workers and the staff of hospice, assisted living and other licensed settings.⁴⁴ New Hampshire's Emergency Order #17 of March 26, 2020 closed businesses not deemed essential; Emergency Order #40 of May 1, 2020 made the Universal Guidelines and the sector reopening guidance mandatory, Emergency Order #52 of June 15, 2020 and its Exhibit A carried them, and Emergency Order #90 of April 16, 2021 extended them through May 7, 2021, after which the Universal Best Practices of May 8, 2021 were recommendations; the Stay at Home 2.0 guidance for dental and health care and the Guiding Principles for Responsibly Resuming Health Care Services of May 4, 2020 were the mandatory content of those orders; and the Department of Health and Human Services' self-isolation and self-quarantine directives under RSA 141-C:11 and :15 ("You must stay at your home") continued in revised versions through 2021.⁴⁵

New Jersey

New Jersey's Executive Order 109 of March 23, 2020, effective March 27 at 5:00 p.m., suspended all elective surgeries and elective invasive procedures performed on adults, whether medical or dental, and Executive Order 145 of May 15, 2020 rescinded the suspension as of May 26, 2020 on conditions that the Department of Health's guidance of May 19, 2020 and Executive Directives 20-016 and 20-018 of June 24, 2020 made mandatory; those directives, as revised on June 16, 2021, were continued after the June 4, 2021 termination of the general orders and ran to January 11, 2022.⁴⁶ Executive Order 242 of May 24, 2021 preserved the face-covering requirement in health care settings, an infection-prevention control on every clinical setting, when it lifted the general requirement; Executive Order 251 of August 6, 2021 required face coverings in schools from August 9, one of the school infection-control conditions (masking, with the quarantine and exclusion rules the schools applied under State protocol) that fixed when the workforce's children attended; Executive Order 252 of August 6, 2021 required workers in health care facilities and congregate settings to be vaccinated or tested at least weekly by September 7, 2021; and Executive Order 253 of August 23, 2021 extended the requirement to school and State employees.⁴⁷ P.L. 2020, c. 9 prohibited an employer from terminating an employee who took time off on a medical professional's advice during the emergency, and P.L. 2020, c. 17 amended the Earned Sick Leave Law for the same purpose.⁴⁸

New York

New York's Executive Orders 202.6 and 202.7 of March 18 and 19, 2020 reduced in-person workforces by 50 and then 75 percent; Executive Order 202.10 of March 23, 2020 directed hospitals to cancel elective procedures and imposed the gathering ban; Executive Order 202.25 of April 29, 2020 permitted resumption county by county; Executive Order 202.31 of May 14, 2020 began New York Forward.⁴⁹ In the third quarter of 2021 the emergency readoption of 10 NYCRR Subpart 66-3 on June 23, 2021 continued the health care face-covering rule, an airborne-transmission control on every clinical setting, to August 27, 2021, when 10 NYCRR 2.60 and the Commissioner's Determination of that date replaced it; Subpart 66-4 of July 30, 2021 required vaccination of nursing home and adult care facility staff; 10 NYCRR 2.61 of August 26, 2021 required every "covered entity," including hospitals, nursing homes, diagnostic and treatment centers, home care and hospice agencies, to ensure that its personnel received a first dose by September 27, 2021; the Commissioner's Determination on Indoor Masking of August 27, 2021 required face coverings in health care settings, the airborne-transmission control preserved for every clinical setting; and Executive Order 4 of September 27, 2021 declared a statewide disaster emergency for the health care staffing shortage that the vaccination rule produced.⁵⁰ Chapter 25 of the Laws of 2020 of March 18, 2020 guaranteed paid leave for employees under quarantine or isolation orders, and Labor Law § 218-b, enacted May 5, 2021 and amended June 11, 2021, required every private employer to adopt an airborne infectious disease exposure prevention plan by August 5, 2021 and to activate it on the Commissioner of Health's designation, which issued September 6, 2021.⁵¹

Pennsylvania

Pennsylvania's Orders of the Governor and the Secretary of Health of March 19, 2020 closed the physical operations of all businesses that were not life-sustaining; the statewide stay-at-home order of April 1, 2020 followed; the Secretary's amended order of April 1, 2020 governed the reporting obligations of health care providers; the Governor's order of May 6, 2020 enhanced protections for health care professionals; and the Yellow Phase and Green Phase orders of May 7 and May 27, 2020 lifted the closures county by county.⁵² On November 23, 2020 the Secretary of Health issued the Mitigation and Enforcement order, effective November 27, and the Order Requiring Reduction of Elective Procedures in Regions with Low Acute Care Hospital Capacity, which ran until its termination on August 23, 2021.⁵³ The Secretary's order of October 13, 2020 required every person conducting COVID-19 antigen tests to report the results, the order of December 14, 2020 required reporting of every COVID-19 immunization administered, and the updated order of July 26, 2021, the orders of August 13 and September 21, 2021, and the school face-covering order of August 31, 2021, effective September 7 (a school infection-control condition on the workforce's children's attendance), continued the Department's sector instruments through the third quarter of 2021; Act 21 of 2021, effective June 11, 2021, continued the regulatory suspensions and licensure waivers of March 2020 to September 30, 2021, and Act 73 of 2021 extended them from that date.⁵⁴ The Department's Health Alert Network advisories of April 9, September 16 and September 21, 2021 stated the infection-prevention practices and work restrictions the Department applied to health care personnel under those orders; they are stated here as facts and circumstances and appear in no inventory of orders in force.⁵⁵

Rhode Island and Vermont

Rhode Island's Executive Order 20-09 of March 22, 2020 closed public-facing businesses, and the Department of Health's emergency regulation 216-RICR-50-15-7, first filed May 8, 2020, governed the operations of every covered entity and was amended twenty times through the emergency amendment of June 18, 2021 that ran to August 31, 2021; Executive Order 21-26 of March 19, 2021 restated the quarantine-and-isolation order that ran to September 1, 2021; 216-RICR-20-15-8 of August 17, 2021 required all workers in licensed health care facilities to be vaccinated by October 1, 2021; Executive Order 21-86 of August 19, 2021 declared a new emergency for the Delta variant and Executive Order 21-87 of the same date required face coverings in every school, a school infection-control condition on the workforce's children's attendance; and Executive Orders 21-93, 21-94 and 21-100 of September 1, 2 and 30, 2021 continued the emergency and the requirements.⁵⁶ Vermont's Emergency Rule H-2020-02-E of March 16, 2020 modified the regulatory conditions of health care delivery for the emergency; Addendum 3 to Executive Order 01-20 of March 20, 2020 postponed all non-essential adult elective surgery and medical and surgical procedures; the amendment of May 4, 2020 permitted phased resumption; Executive Order 06-21 of June 15, 2021 continued the emergency; and Emergency Rule H-2021-01-E of July 1, 2021 continued the modified conditions through March 31, 2022.⁵⁷

The South

Alabama's State Health Officer ordered on March 19, 2020 that all elective dental and medical procedures be delayed, and the orders of March 27, April 3 and April 28, 2020 continued the postponement, with dental practice confined to urgent care under the Dental Board's protocol of April 3, 2020 and all dental, medical and surgical procedures resumed April 30, 2020 under the Safer at Home Order and the Board's return-to-practice protocol; the state of emergency ran to July 6, 2021, a new emergency was proclaimed August 13, 2021, and SB 267 of May 17, 2021 prohibited vaccination requirements as a condition of receiving services.⁵⁸ Arkansas' Department of Health directed on April 3, 2020 that "Procedures, testing, and office visits that can be safely postponed shall be rescheduled to an appropriate future date," with resumption from April 27, 2020 under conditions; Executive Order 20-13 of April 4, 2020 governed closures; the ADH's dental directive was revised June 22, 2020; the ADH's fourteen-day quarantine requirement of May 22, 2020 continued through 2021; Act 1002 of April 28, 2021 prohibited mask mandates and was preliminarily enjoined August 6, 2021; and Executive Order 21-14 of July 29, 2021 declared a new emergency that ran to September 27, 2021.⁵⁹ The District of Columbia's Mayor's Orders 2020-053 and 2020-054 of March 24 and March 30, 2020 closed businesses not deemed essential and imposed the stay-at-home order; Mayor's Order 2020-067 of May 27, 2020 conditioned Phase One elective care, from May 29, 2020, on DC Health's requirements for elective surgery and dental care; Mayor's Order 2021-096 of July 24, 2021 continued the public emergency; Mayor's Order 2021-097 of July 29, 2021 reinstated the indoor face-covering requirement, an airborne-transmission control on every indoor public space in the District, from July 31, 2021; and the Mayor's and DC Health's situational updates of August 16 and September 20, 2021 announced the health care worker and District employee vaccination requirements and their deadlines, requirements whose own instruments the Library records as not retrieved.⁶⁰

Delaware and Florida

Delaware's Fourth and Fifth Modifications of the Declaration of a State of Emergency of March 22, 2020, effective March 24 at 8:00 a.m., closed businesses not deemed essential and ordered every individual to shelter in place, and the Tenth, Twelfth, Thirteenth and Twentieth Modifications governed the resumption of operations through June 1, 2020; the Twenty-Eighth and Twenty-Ninth Modifications of May 12 and 18, 2021 ended the general restrictions at 8:00 a.m. May 21, 2021, and the Twenty-Ninth ran to the termination of the State of Emergency on July 13, 2021; the Public Health Emergency declaration of July 12, 2021 followed; and the emergency Secretary's orders of June 17 and 25, August 13 and September 8 and 10, 2021 amended the licensing regulations for hospitals, home health agencies, skilled nursing facilities, personal assistance services agencies and other licensed settings to continue COVID-19 infection-control, testing and reporting requirements from July 1, 2021 and to require vaccination or testing of personnel from September 30, 2021.⁶¹ Florida's Executive Order 20-72 of March 20, 2020 prohibited "any medically unnecessary, non-urgent or non-emergency procedure or surgery" by every hospital, ambulatory surgical center, office surgery center, dental, orthodontic and endodontic office and other health care practitioner's office; Executive Orders 20-91 and 20-92 of April 1, 2020 imposed the safer-at-home order; Executive Order 20-112 of April 29, 2020, effective May 4, lifted the prohibition on conditions; the Department of Health's Emergency Orders 20-002, 20-003, 20-012, 20-013 and 20-015 modified licensure and telehealth until the expiration of Executive Order 20-52 on June 26, 2021, with the licensure-renewal extensions carried to June 30, 2021 by DOH Emergency Order 21-001 and § 1 of Emergency Order 20-015 running to December 31, 2021; the state of emergency ended June 26, 2021; and in the third quarter of 2021 chapter 2021-8, Laws of Florida, effective July 1, 2021, Executive Order 21-175 of July 30, 2021 and the Department of Health's emergency rules 64DER21-12 of August 6, 2021 and 64DER21-15 of September 22, 2021 prohibited vaccination documentation requirements and governed face coverings and quarantine in schools, school infection-control conditions on the workforce's children's attendance with the quarantine and exclusion rules applied under them.⁶²

Georgia, Kentucky and Louisiana

Georgia's Executive Order 03.20.20.02 of March 20, 2020 and Executive Order 04.20.20.01 of April 20, 2020 governed health care operations and the resumption of elective procedures; the Public Health State of Emergency ran from March 14, 2020 to July 1, 2021; and Executive Orders 06.30.21.02, 08.19.21.03 and 09.20.21.02 of June 30, August 19 and September 20, 2021 continued the Economic Recovery State of Emergency and its health care provisions.⁶³ Kentucky's Cabinet for Health and Family Services directed on March 23, 2020, effective at the close of business on March 18, that all elective procedures cease, and Executive Order 2020-257 of March 25, 2020 closed non-life-sustaining businesses; the CHFS Order of April 27, 2020 began Healthcare Reopening Phase I, modified on May 1, 6, 8 and 13 and later; the emergency was extended by HJR 77 to June 28, 2021 and by HJR 1 to January 15, 2022; Executive Order 2021-386 of June 11, 2021 lifted the general requirements and preserved the face-covering requirement in health care settings, one of the infection-prevention controls those settings carried; Executive Order 2021-585 of August 10, 2021 and 902 KAR 2:213E of August 12, 2021 reinstated face coverings in schools and child care, school infection-control conditions on the workforce's children's attendance and child care, until HJR 1 of September 7, 2021 terminated the executive order and SB 1 of September 9, 2021 voided the regulations; and the Supreme Court of Kentucky's Administrative Orders 2021-27 and 2021-28 of August 9, 2021 governed the courts.⁶⁴ Louisiana's Proclamations 33 JBE 2020 and 38 JBE 2020 of March 22 and 31, 2020 imposed the stay-at-home order; the Department of Health's dental notice of March 17, 2020 and its Healthcare Facility Notice/Order ALL-010 of April 20, 2020 postponed and then conditioned medical and surgical procedures and dental visits until the LDH released the emergency order on May 24, 2021; Proclamations 137 JBE 2021, 167 JBE 2021 and 181 JBE 2021 of August 2, August 31 and September 28, 2021 reinstated the indoor face-covering requirement, an airborne-transmission control on every indoor space open to the public including every clinic, from August 4, 2021; Emergency Rule 46 of August 12, 2021 governed medical surge patient transfers; the Department of Health's school reporting order of September 1, 2020 required every school to report known and suspected cases and remained in force through the third quarter of 2021; and the Department's decision tree of August 3, 2021 stated the isolation and quarantine protocol schools applied under it and under the mask proclamations.⁶⁵

Maryland, Mississippi and North Carolina

Maryland's Department of Health directed on March 23, 2020 that elective and non-urgent medical procedures cease, and the Governor's Order No. 20-04-01-01 of April 1, 2020 authorized additional health care actions; the stay-at-home order of March 30, 2020 followed; the amended MDH directive of May 6, 2020 permitted resumption; the transition plan of June 15, 2021 ran to August 15, 2021; the MDH Amended Directive and Order Regarding Various Healthcare Matters of June 15, 2021 ran to December 31, 2021; and the vaccination and nursing home orders of August 5, August 18 and September 8, 2021 required vaccination or testing of the staff of nursing homes, hospitals and other facilities from September 1, 2021.⁶⁶ Mississippi's Executive Order 1463 of March 24, 2020 and its Supplement of March 26 limited gatherings and restricted business operations; Executive Order 1466 of April 1, 2020 imposed shelter-in-place; Executive Order 1470 of April 10, 2020 continued the postponement of elective procedures; Executive Order 1477 of April 24, 2020 permitted resumption from April 27, 2020 on conditions; and the State of Emergency ran until November 20, 2021.⁶⁷ North Carolina's Secretary of Health and Human Services wrote to every hospital and ambulatory surgery center on March 20, 2020 requesting the suspension of elective and non-urgent procedures from March 23, 2020, a request made under a state of emergency whose orders carried a Class 2 misdemeanor and followed within seven days by Executive Order 121's stay-at-home order of March 27, 2020 and by the Board of Dental Examiners' statements of March 16, 18 and 20 and April 30, 2020 governing dental practice; Executive Order 220 of June 11, 2021 required face coverings in every school and health care setting to July 30, 2021, infection-prevention controls on every clinical setting and on the schools the workforce's children attended, and applied the StrongSchoolsNC toolkit in the schools; Executive Orders 224, 229 and 232 of July 29, August 31 and September 2, 2021 required vaccination or testing of State employees and continued the emergency measures; and S.L. 2021-130 of August 30, 2021 required every local board of education to adopt, and vote monthly on, a face-covering policy, with the toolkit's quarantine rules applied under it.⁶⁸

Oklahoma, South Carolina and Tennessee

Oklahoma's Fourth Amended Executive Order 2020-07 of March 24, 2020 and Amended Executive Memorandum 2020-01 of March 25, 2020 postponed "all elective surgeries, minor medical procedures, and non-emergency dental procedures" until April 7, 2020, extended by the Seventh Amended order of April 1, 2020 to April 24, 2020 and lifted in phases by Executive Memorandum 2020-02 of April 16 and 20, 2020; Executive Order 2021-16 of May 28, 2021 and Senate Bill 658, effective July 1, 2021, prohibited mask and vaccination requirements in schools.⁶⁹ South Carolina's Executive Order 2020-11 of March 19, 2020 directed State-employee telework and Executive Order 2020-21 of April 6, 2020 imposed the home-or-work order; Act 94 of 2021, effective July 1, 2021, prohibited mask mandates in schools and State facilities; the Supreme Court's trial-court order of June 15, 2021 ran to August 27, 2021; and the Department of Health and Environmental Control's exclusion list of August 24, 2021 fixed the conditions on which students were excluded from school in the 2021-22 school year.⁷⁰ Tennessee's Executive Order 18 of March 23, 2020 prohibited non-emergency dental procedures and directed the postponement of elective and non-urgent medical procedures; Executive Order 22 of March 30, 2020 imposed the safer-at-home order; Executive Order 25 of April 8, 2020 extended the procedure limits to April 30, 2020; Executive Order 31 of April 29, 2020, effective April 30, ended the dental limits May 6, 2020; Executive Orders 82 and 83 of July 30 and August 6, 2021 continued the emergency and governed face coverings in schools, a school infection-control condition on the workforce's children's attendance; and the Supreme Court of Tennessee's orders of May 14 and August 26, 2021 governed the courts.⁷¹

Texas, Virginia and West Virginia

Texas' Executive Order GA-09 of March 22, 2020 directed every licensed health care professional and facility to "postpone all surgeries and procedures that are not immediately medically necessary"; GA-15 of April 17, 2020 and GA-19 of April 27, 2020 relaxed and then replaced the prohibition with capacity-reservation conditions; GA-27 of June 25, 2020 re-imposed the prohibition in named counties; GA-31 of September 17, 2020, which superseded GA-19 and GA-27, and GA-32 of October 7, 2020 continued trauma-service-area-triggered prohibitions until GA-34, issued March 2, 2021 and effective March 10, 2021, rescinded them; the Texas Medical Board's emergency rule of April 30, 2020 governed notice and compliance; GA-38 of July 29, 2021 prohibited local mask and vaccination mandates while it continued the disaster, renewed August 29, 2021; and the Supreme Court of Texas' Thirty-Ninth and Fortieth Emergency Orders of July 19, 2021 governed the courts to October 1, 2021.⁷² Virginia's Order of Public Health Emergency Two of March 25, 2020 prohibited all inpatient and outpatient surgical hospitals, free-standing endoscopy centers, "physicians' offices, and dental, orthodontic, and endodontic offices" from providing procedures and surgeries that required PPE and that were not required to be performed within thirty days, amended April 23 and ending April 30, 2020; Executive Order 55 of March 30, 2020 imposed the stay-at-home order; the Safety and Health Codes Board's Emergency Temporary Standard, adopted July 15, 2020, its Final Permanent Standard of January 13, 2021 and the amendments of September 8, 2021 governed every Virginia workplace, including medical offices; Executive Directive 18 of August 5, 2021 required vaccination or testing of State employees from September 1, 2021; the State Health Commissioner's order of August 12, 2021 required face coverings in schools, a school infection-control condition on the workforce's children's attendance; and the Supreme Court of Virginia's judicial emergency orders continued through the period.⁷³ West Virginia's Executive Order 9-20 of March 23, 2020 imposed the stay-at-home order; Executive Order 16-20 of March 31, 2020 prohibited elective medical procedures from April 1, 2020; Executive Orders 28-20 and 30-20 of April 20 and 27, 2020 permitted phased resumption on conditions that Executive Order 12-21 of April 19, 2021 kept in force at paragraphs 2(h) and 2(i); Executive Order 13-21 of April 30, 2021 followed; and Executive Order 23-21 of July 20, 2021 terminated the remaining orders effective October 1, 2021, after the close of the last quarter at issue.⁷⁴

The Midwest

Illinois' Executive Order 2020-07 of March 16, 2020 limited gatherings; Executive Order 2020-09 of March 19, 2020 expanded telehealth and its §§ 9 and 10 were re-issued monthly through 2021; Executive Order 2020-10 of March 20, 2020 imposed the stay-at-home order, effective March 21 at 5:00 p.m., with a Healthcare and Public Health Operations exemption that left every clinic subject to the order's social distancing requirements; Executive Order 2020-30 of April 23, 2020 suspended evictions; the Department's emergency amendments to 77 Ill. Adm. Code Part 690 of August 7, 2020 supplied enforcement mechanisms; and in 2021 Executive Order 2021-12 of June 11 lifted the general restrictions while Executive Order 2021-18 of August 4, Executive Order 2021-20 of August 26 and Executive Order 2021-22 of September 3 reinstated the statewide indoor face-covering requirement from August 30, 2021 and, in the same instruments, required health care workers, school personnel and higher-education staff to be vaccinated or tested, one exposure-control regime for every health care facility in the State, with health care workers to have a first dose within ten days (September 5, 2021) under EO 2021-20, a deadline Executive Order 2021-22 of September 3, 2021 moved to September 19, 2021.⁷⁵ Indiana's Executive Order 20-08 of March 23, 2020 imposed the stay-at-home order; Executive Order 20-13 of March 30, 2020 directed hospitals, ambulatory surgical centers and every licensed health care provider to cancel or postpone elective and non-urgent procedures from April 1, 2020; Executive Order 20-21 of April 15, 2020 continued the emergency measures and Executive Order 20-24 of April 24, 2020 permitted resumption; Executive Order 20-50 of December 10, 2020, effective December 13, directed hospitals to postpone non-emergent inpatient procedures from December 16, 2020 through January 3, 2021, and Executive Order 20-53 extended the order to January 24, 2021 and Executive Order 21-01 to January 31, 2021; Executive Orders 21-17, 21-19 and 21-24 of June 30, July 29 and September 1, 2021 continued the emergency and its health care directives month by month; and the Department of Health's COVID-19 control measures under 410 IAC 1, updated July 19, 2021, governed isolation, quarantine and reporting for every provider.⁷⁶ Iowa's Proclamation of March 26, 2020 ordered every hospital, outpatient surgery provider and outpatient procedure provider to cease "all nonessential or elective surgeries and procedures" from 5:00 p.m. on March 27, 2020 and closed dental offices to all but emergency care; the Proclamations of April 24 and April 27, 2020 permitted phased resumption on conditions, and the Proclamation of May 6, 2020 permitted dental resumption on conditions; in 2021 House File 847 of May 20, 2021 prohibited mask mandates by counties, cities and schools, House File 889 of the same date prohibited vaccination-proof requirements, the disaster proclamations of July 23, August 19 and September 17, 2021 continued the emergency, and the Supreme Court of Iowa's order of August 27, 2021 governed the courts.⁷⁷

Kansas, Michigan, Minnesota and Missouri

Kansas' Executive Order 20-16 of March 28, 2020 imposed the stay-at-home order, effective March 30; Executive Order 20-34 of May 19, 2020 began the phased reopening; Executive Order 20-52 of July 2, 2020 required face coverings statewide, an airborne-transmission control imposed on every indoor public space including every clinic, until SB 40 revoked it on March 31, 2021; the KDHE Secretary's order of June 18, 2021 required COVID-19 testing in adult care homes; and the KDHE travel and exposure quarantine mandate continued through the third quarter of 2021.⁷⁸ Michigan's Executive Order 2020-17 of March 20, 2020 directed every hospital, freestanding surgical outpatient facility, dental facility and State-operated outpatient facility to postpone non-essential procedures from March 21 at 5:00 p.m.; Executive Order 2020-21 of March 23, 2020 imposed the stay-at-home order; Executive Orders 2020-42 and 2020-77 of April 9 and May 7, 2020 continued it; the Department of Health and Human Services' emergency order of March 23, 2020 prioritized laboratory testing and reporting; Executive Order 2020-96 of May 21, 2020 rescinded the procedure order as of May 29, 2020 on conditions; Executive Order 2020-110 of June 1, 2020 continued the workplace safeguards; the Supreme Court of Michigan's decision of October 2, 2020 in In re Certified Questions ended the Governor's orders and the Department's epidemic orders under MCL 333.2253 replaced them; the Department's order of May 21, 2021 governed residential care facilities through the third quarter of 2021; the Supreme Court's administrative orders governed the courts until their rescission on July 26, 2021; and the county health orders of August 2021 in Ottawa, Oakland and Wayne Counties required face coverings in schools, school infection-control conditions on the workforce's children's attendance.⁷⁹ Minnesota's Emergency Executive Order 20-09 of March 19, 2020, effective March 23 at 5:00 p.m., ordered the postponement of all non-essential or elective surgeries and procedures, "including non-emergent or elective dental care," and Emergency Executive Order 20-20 of March 25, 2020 imposed the stay-at-home order; Emergency Executive Order 20-51 of May 5, 2020, effective May 10, replaced the postponement with a requirement that every facility adopt and follow a written plan meeting the Department of Health's criteria before resuming, and that requirement ran until May 27, 2021; the peacetime emergency ended July 1, 2021 by Laws 2021, First Special Session, chapter 12, article 2; the Judicial Branch orders of June 28 and July 30, 2021 governed the courts; and the State's vaccination-or-testing policy for its employees issued August 11, 2021.⁸⁰ Missouri's Executive Order 20-04 of March 18, 2020 modified licensure; the Department of Health and Senior Services' Stay Home Missouri order of April 3, 2020, effective April 6, imposed the stay-at-home order and its health care exemption; the Director's order of May 18, 2020 governed the reopening; and Executive Order 21-09 of August 27, 2021 continued the health care flexibilities through December 31, 2021.⁸¹

Nebraska, North Dakota, Ohio, South Dakota and Wisconsin

Nebraska's Directed Health Measure Order 2020-002 of March 25, 2020 for the Omaha and Lincoln districts imposed the gathering limits, Order 2020-009 of April 3, 2020 for all ninety-three counties postponed elective surgeries and procedures and extended the limits statewide, and Executive Order 20-12 of March 31, 2020 modified licensure through August 27, 2021; in November 2020 Directed Health Measure Order 2020-SCHD-012 of November 9, 2020 for Sarpy and Cass Counties, effective November 11, and the Directed Health Measure Orders of November 13, 2020 in every district re-imposed procedure limits on hospitals and gathering limits statewide through December 11, 2020; and Executive Order 21-12 of August 26, 2021 continued the health care flexibilities through December 31, 2021, while the Lincoln-Lancaster County Directed Health Measure of August 24, 2021 required face coverings indoors from August 26, 2021, an airborne-transmission control on every indoor public space in the county.⁸² North Dakota's Executive Order 2020-06 of March 19, 2020 closed public-facing businesses and Executive Order 2020-05.1 of March 20, 2020 modified health care licensure and operations for the duration of the emergency, which ran to April 30, 2021; Executive Order 2020-22 of April 6, 2020 governed elective procedures; and House Bill 1465, signed May 7, 2021 and effective May 10, 2021 on filing as an emergency measure, prohibited statewide mask mandates.⁸³ Ohio's Director of Health ordered on March 17, 2020, effective March 18 at 5:00 p.m., that all non-essential or elective surgeries and procedures that use PPE cease, and Executive Order 2020-05D of March 19, 2020 modified licensure; the Stay at Home order of March 22, 2020 followed; the Director's order of April 30, 2020 permitted resumption; the Director's orders of May 14, 2020 governed the reopening of close-contact services; the Director's amended orders of May 4, 2021 required testing of the residents and staff of nursing homes and assisted living facilities through July 1, 2022; the Department's K-12 quarantine instructions of August 31, 2021 fixed, as a matter of fact and circumstance, when exposed students were sent home; and the City of Dayton's ordinance, adopted September 15, 2021, required face coverings indoors from September 17, 2021, an airborne-transmission control on every indoor public space in the city.⁸⁴ South Dakota's Executive Order 2020-08 of March 23, 2020 directed the postponement of elective procedures and Executive Order 2020-12 of April 6, 2020 ordered every hospital and surgical facility to postpone non-essential elective surgeries, an order Executive Order 2020-20 of April 28, 2020 rescinded and replaced with the Back to Normal Plan, which every South Dakotan "shall implement and follow"; and the Unified Judicial System's judicial emergency order ran through the period.⁸⁵ Wisconsin's Executive Order #72 of March 12, 2020 declared the emergency; Emergency Order #12 of March 24, 2020 imposed the Safer at Home order, effective March 25 at 8:00 a.m., under which health care and dental offices remained open as essential operations subject to the order's telework, distancing and gathering mandates; Emergency Orders #16 (March 27, 2020) and #20 and #21 (April 6, 2020) modified licensure and health care operations; Emergency Order #1 of July 30, 2020 required face coverings statewide from August 1, 2020, an airborne-transmission control on every indoor space open to the public, and the Governor's successive Emergency Orders #1 carried the mandate to March 31, 2021, when Fabick v. Evers voided the orders; Public Health Madison & Dane County's Face Covering Emergency Orders of August 17 and September 9, 2021 required face coverings indoors from August 19, 2021, airborne-transmission controls on every indoor public space in Dane County including every clinic (Ex. MET-MKE-023; Ex. MET-MKE-024); and the Supreme Court of Wisconsin's decision in Becker v. Dane County of July 8, 2022 confirmed the lawfulness of the county health orders that governed Dane County practices through 2021.⁸⁶

The West

Alaska's COVID-19 Health Mandates 005 and 006 of March 19, 2020 postponed elective procedures and elective oral health procedures; Health Mandate 011 of March 27, 2020 imposed social distancing; Health Mandate 015 of April 15, 2020 governed services by health care providers, with its § I effective April 20 and § II effective May 4, 2020, and expired November 15, 2020; the Commissioner's Public Health Emergency order of April 30, 2021, effective May 1, continued the health care flexibilities; and Addendum No. 1 of September 21, 2021 activated crisis standards of care.⁸⁷ Arizona's Executive Order 2020-10 of March 19, 2020, effective March 21 at 8:00 a.m., directed the postponement of all non-essential or elective surgeries, "including elective dental surgeries"; Executive Order 2020-18 of March 30, 2020 imposed the stay-at-home order; Executive Order 2020-22 of April 7, 2020 governed insurance and telehealth; Executive Order 2020-32 of April 22, 2020 permitted resumption from May 1, 2020 on conditions; Executive Order 2020-36 of May 12, 2020 continued the conditions and ran to March 25, 2021; Executive Order 2021-16 of July 2, 2021 scheduled the expiration of the remaining orders, keeping Executive Orders 2020-12, 2021-05, 2021-06, 2021-09, 2021-10 and 2021-15 in force to September 29, 2021; Executive Order 2021-18 of August 16, 2021 prohibited State-employee vaccination mandates; and the Navajo Nation's Public Health Emergency Orders of 2020 and of June 18 through August 12, 2021 imposed stay-at-home orders, curfews, mask requirements and gathering limits on the practices that served the Nation from Arizona, New Mexico and Utah.⁸⁸ California's Executive Order N-33-20 of March 19, 2020 and the State Public Health Officer's order of the same date imposed the stay-at-home order that ran to June 15, 2021, with the Essential Critical Infrastructure Workers list of March 22, 2020 defining the health care exemption; Executive Order N-39-20 of March 30, 2020 modified licensure; the conditions the State Public Health Officer's order of March 19, 2020 placed on dental practice were stated in the Department of Public Health's document of May 7, 2020; the Regional Stay at Home Order of December 3, 2020 and its Supplement of December 6 ran to January 25, 2021, and the State Public Health Officer's hospital surge order of January 5, 2021 curtailed non-essential surgeries in regions with less than 10 percent ICU capacity until February 5, 2021; the Beyond the Blueprint order of June 11, 2021, effective June 15, lifted the general restrictions while preserving the face-covering requirement in health care settings, an infection-prevention control on every clinic regardless of vaccination status; the State Public Health Officer's orders of July 26 and August 5, 2021 required vaccination or testing of workers in health care and congregate settings by August 23, 2021 and vaccination of health care workers by September 30, 2021; the face-covering guidance of July 28, 2021 and the Beyond the Blueprint industry guidance of September 20, 2021 followed; Cal/OSHA's COVID-19 Prevention emergency standard, Cal. Code Regs. tit. 8, § 3205, in force from November 30, 2020 and readopted June 17, 2021, governed every California workplace; the Department of Public Health's All Facilities Letters governed licensed facilities; the Department of Consumer Affairs' waivers of March 31, 2020 through September 28, 2021 modified license renewal for the health care professions; and AB 832 of June 28, 2021 continued the rental protections.⁸⁹

Colorado, Hawaii, Idaho and Montana

Colorado's Public Health Order 20-20 of March 12, 2020 governed skilled nursing and assisted living; Executive Order D 2020 009 of March 19, 2020, effective March 23, ordered the suspension of all elective and non-essential surgeries and procedures, and Executive Order D 2020 027 of April 6, 2020 extended it to April 26, 2020; Executive Orders D 2020 013 and D 2020 017 of March 22 and 25, 2020 and Public Health Order 20-24 imposed the stay-at-home order; Executive Order D 2020 020 of April 1, 2020 suspended regulatory statutes for the emergency; Executive Order D 2020 045 of April 26, 2020 permitted resumption on conditions and Public Health Order 20-29 of April 27, 2020, amended thirteen times, set the conditions; in 2021 the Seventh Amended Public Health Order 20-20 of May 31 and the Fourth, Fifth and Sixth Amended Public Health Orders 20-38 of June 30, July 30 and August 31 governed health care and congregate settings month by month, the emergency rule of August 30, 2021 at 6 CCR 1011-1, ch. 2, pt. 12 required every worker in a licensed health facility to receive a first dose by September 30, 2021 and to be fully vaccinated by October 31, 2021, and the Eighth Amended Public Health Order 20-20 of September 27, 2021 continued the requirements; Senate Bill 20-205 of July 14, 2020 mandated paid sick leave and the Wage Protection Rules of November 10, 2020 implemented it.⁹⁰ Hawaii's Second and Third Supplementary Proclamations of March 21 and 23, 2020 imposed the fourteen-day traveler quarantine from March 26 and the stay-at-home order from March 25, 2020, and the Sixth Supplementary Proclamation's Exhibit F of April 25, 2020 governed elective procedures; the Twenty-First Proclamation of June 7, 2021, the Emergency Proclamation of August 5, 2021, Executive Order 21-05 of August 10, 2021 and Executive Order 21-06 of September 1, 2021 continued the emergency, required vaccination or testing of State and county employees, and limited gatherings and capacity through the third quarter of 2021.⁹¹ Idaho's Order to Self-Isolate of March 25, 2020 imposed the stay-at-home order; the proclamation of March 23, 2020 suspended more than 125 administrative rules for the duration of the emergency; the proclamation of June 18, 2021 continued the emergency and its appendix of suspended rules; Executive Order 2021-11 of August 31, 2021 activated the National Guard to assist hospitals; and the Department of Health and Welfare activated crisis standards of care for the Panhandle and North Central health districts on September 7, 2021 and statewide on September 16, 2021.⁹² Montana's Stay at Home Directive of March 26, 2020, effective March 28, imposed the stay-at-home order and its health care exemption; House Bill 702 of May 7, 2021 prohibited discrimination based on vaccination status, with the Department of Public Health and Human Services' letter of July 28, 2021 construing its exemption for licensed nursing homes, long-term care and assisted living facilities; and the Department's emergency rule of August 31, 2021 governed the same.⁹³

Nevada, New Mexico and Oregon

Nevada's Declaration of Emergency Directive 010 of March 31, 2020 imposed the stay-at-home order and Directive 011 of April 1, 2020 modified health care licensure and operations until Directive 046 of July 20, 2021 amended it; the Board of Dental Examiners' statement of April 7, 2020 and the Governor's release of April 28, 2020 governed the resumption of limited medical and dental procedures; Directive 047 of July 27, 2021, effective July 30, reinstated the indoor face-covering requirement in counties with substantial or high transmission, an airborne-transmission control that Nevada OSHA enforced as a workplace rule; Nevada OSHA adopted the federal Healthcare Emergency Temporary Standard as a Nevada standard effective July 1, 2021 and enforced Directive 047 in every workplace; and the Board of Health's emergency regulation of August 20, 2021 amending NAC 441A.755, with the Board's action of September 10, 2021, required vaccination of the staff of State and other covered facilities by November 1, 2021.⁹⁴ New Mexico's Public Health Emergency Order of March 23, 2020, effective March 24 at 8:00 a.m., imposed the stay-at-home order; the Public Health Emergency Order of March 24, 2020 imposed temporary restrictions on non-essential health care services and procedures from March 27, 2020, modified April 30, 2020; the order of March 24, 2020 regulated the sale and distribution of PPE; Executive Order 2020-027 of May 1, 2020 continued the emergency; the Public Health Emergency Order of December 9, 2020, effective December 11, re-imposed restrictions on non-essential surgical procedures through January 4, 2021; the order of June 30, 2021 ended the county framework and capacity limits from July 1, 2021; Executive Order 2021-046 of July 30, 2021 continued the emergency; the Public Health Emergency Order of August 17, 2021 reinstated the indoor face-covering requirement and, in the same instrument, required vaccination of hospital, congregate-care and school workers, one exposure-control regime; and the orders of September 15, 2021 extended the face-covering requirement and amended the school-worker requirement.⁹⁵ Oregon's Executive Order 20-10 of March 19, 2020 ordered the cancellation of all elective and non-urgent procedures no later than March 23, 2020; Executive Order 20-12 of March 23, 2020 imposed the stay-at-home order; Executive Order 20-22 of April 27, 2020 rescinded the cancellation as of May 1, 2020 and conditioned the resumption on PPE, testing and capacity criteria that ran until Executive Order 21-15 of June 25, 2021 rescinded it as of June 30, 2021; Oregon OSHA's temporary rule of November 6, 2020 and permanent rule of May 4, 2021 governed every workplace; and in the third quarter of 2021 the Oregon Health Authority's temporary rules OAR 333-019-1015 (August 2, 2021), 333-019-1010 (August 5 and 25, 2021), 333-019-1025 (August 11, 2021, effective August 13) and 333-019-1011 (August 20, 2021), with Executive Order 21-29 of August 13, 2021 and Oregon OSHA's Administrative Order 12-2021 of September 14, 2021, required vaccination of health care providers and staff by October 18, 2021, required face coverings in schools, in health care settings and in indoor public spaces, airborne-transmission controls that Oregon OSHA adopted as workplace rules, and required proof of vaccination or testing for State employees.⁹⁶

Utah, Washington and Wyoming

Utah's State Public Health Order UPHO 2020-03 of March 23, 2020, effective March 25, prohibited elective surgeries and procedures until the Department's order of April 21, 2020, in its version of May 1, rescinded the prohibition and imposed provider protocols to May 15, 2020; the Governor's Stay Safe, Stay Home directive of March 27, 2020 followed the prohibition; and House Bill 1007 of May 28, 2021 prohibited mask requirements in schools and by local governments absent legislative approval.⁹⁷ Washington's Proclamation 20-24 of March 19, 2020 prohibited every hospital, ambulatory surgical facility, dental, orthodontic and endodontic office from providing non-urgent procedures, and Proclamation 20-25 of March 23, 2020 imposed the stay-at-home order; Proclamation 20-24.1 of May 18, 2020 replaced the prohibition with a plan-and-conditions requirement; Proclamation 20-24.2 of November 25, 2020, effective December 3, continued the conditions until the state of emergency was rescinded, and it was in force through the third quarter of 2021; the Supreme Court of Washington's Amended Order No. 25700-B-607 of March 18, 2020 governed the courts; and in 2021 the Secretary of Health's Orders 20-03.3, 20-03.4 and 20-03.5 of June 29, August 19 and September 13, 2021 required face coverings in health care settings and then indoors statewide from August 23, 2021, infection-prevention controls that the Department of Labor and Industries' emergency rules carried into every workplace with their exposure-control requirements, Proclamations 20-25.14, 20-25.15 and 20-25.17 of July 1, August 20 and September 13, 2021 governed the reopening, Proclamations 21-14, 21-14.1 and 21-14.2 of August 9, August 20 and September 27, 2021 required vaccination of all health care providers and health care setting operators by October 18, 2021, the Department of Labor and Industries' emergency rules WAC 296-800-14035 of July 6, August 23 and September 20, 2021 and WAC 296-62-600 through -6000 of August 10, 2021 governed every workplace, and Proclamation 21-09 of June 29, 2021 bridged the eviction moratorium to September 30, 2021.⁹⁸ Wyoming's Statewide Public Health Orders #1, #2 and #3 of March 19, 20 and 24, 2020 closed public-facing businesses and limited gatherings, with health care operations exempted subject to the Department of Health's directives, and the Department's document of April 24, 2020 stated the conditions on which elective and non-emergency procedures resumed, the Governor announcing the resumption effective immediately on April 28, 2020; House Enrolled Act No. 93 of April 22, 2021, effective July 1, 2021, created W.S. 35-1-310 and 35-1-240(c) to limit the duration of public health orders and mask requirements.⁹⁹

The winter of 2020-21

The Service's narrative treats the summer of 2020 as the end of the health care orders. The instruments say otherwise. Texas' GA-31 of September 17, 2020 and GA-32 of October 7, 2020 required hospitals in any trauma service area in which COVID-19 patients exceeded 15 percent of hospital capacity for seven consecutive days to postpone procedures that were not immediately medically necessary, and by January 15, 2021 eighteen of the State's twenty-two trauma service areas, covering every major metropolitan area, had crossed the threshold, until GA-34 took effect on March 10, 2021.¹⁰⁰ Pennsylvania's order of November 23, 2020 required hospitals in regions with low acute-care capacity to reduce elective procedures by 50 percent and ran to August 23, 2021.¹⁰¹ Nebraska's Directed Health Measures of November 9 and 13, 2020 required hospitals to reduce elective surgeries and imposed gathering limits statewide through December 11, 2020.¹⁰² New Mexico's order of December 9, 2020 prohibited non-essential surgical procedures from December 11, 2020 through January 4, 2021.¹⁰³ Massachusetts' order of December 7, 2020 curtailed elective invasive procedures from December 11, 2020 until March 1, 2021.¹⁰⁴ Indiana's Executive Order 20-50 of December 10, 2020 directed hospitals to postpone non-emergent inpatient procedures from December 16, 2020 through January 3, 2021, and Executive Orders 20-53 and 21-01 extended the order to January 24 and January 31, 2021.¹⁰⁵ California's Regional Stay at Home Order of December 3, 2020 confined the residents of every region with less than 15 percent ICU capacity to their homes except for essential activities through January 25, 2021, and the hospital surge order of January 5, 2021 required hospitals in regions with less than 10 percent ICU capacity to delay non-essential surgeries through February 5, 2021.¹⁰⁶ The Kaiser Family Foundation recorded four new statewide stay-at-home orders in the same season.¹⁰⁷ Each of these orders reached the outpatient practice whose surgeons, anesthesiologists, radiologists and pathologists worked in the hospitals named, whose patients were the hospitals' pre-operative and post-operative patients, and whose referral relationships ran through the hospitals' cancelled schedules.

The 2021 transition

The general orders ended on different dates in different States, and the dates matter to the "during the calendar quarter" analysis in the ecosystem section. Texas lifted its procedure triggers on March 10, 2021 and its remaining general orders in the same instrument. Kansas' face-covering order, the airborne-transmission control on every indoor public space in the State, was revoked March 31, 2021. West Virginia's general orders were terminated effective April 20, 2021 by Executive Order 12-21 of April 19, with the health care conditions of paragraph 2 preserved (Ex. WV-063). North Dakota's emergency ended April 30, 2021. Ohio's general health orders were lifted in June 2021 while the facility testing orders continued. Minnesota's EO 20-51 conditions ended May 27, 2021 and the peacetime emergency July 1, 2021. Louisiana released the LDH procedure order May 24, 2021. New Jersey's general orders ended June 4, 2021 with the health care directives continued. California, New York and Illinois lifted their general orders on June 11-15, 2021. Oregon's EO 20-22 conditions ended June 30, 2021. Georgia's public health emergency ended July 1, 2021; Maryland's emergency orders terminated July 1, 2021 with a forty-five-day transition to August 15 and the health care directive continued to December 31, 2021; Pennsylvania's elective-reduction order ran to August 23, 2021 and its regulatory suspensions to September 30, 2021; Washington's Proclamation 20-24.2 ran through the quarter; and Maine's § I(F) ran to August 30, 2021.¹⁰⁸ Those dates place the end of the 2020 orders inside the second and third quarters of 2021 for a substantial part of the industry, and the third quarter of 2021 orders described in the six quarters section began before the earlier orders had ended in Pennsylvania, Maryland, Washington, Maine, New Jersey, Michigan, Ohio, Kansas, Indiana and West Virginia.

The preemption States

In Alabama, Arkansas, Florida, Georgia, Iowa, Kansas, Montana, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, Utah and Wyoming the 2021 legislatures and governors issued instruments that prohibited local governments, schools and in some cases private businesses from imposing mask or vaccination requirements.¹⁰⁹ The Service reads those instruments as the absence of orders. They are orders. A statute that prohibits a physician practice from requiring proof of vaccination as a condition of service (Florida's chapter 2021-8; Montana's HB 702; Alabama's SB 267; Iowa's HF 889) is an order of an appropriate governmental authority that limits the practice's commerce with its patients; a statute that prohibits a practice from requiring masks of its patients where local law required them the day before changes the conditions of the practice's operation as surely as the order it displaces; and the litigation that those instruments produced (Arkansas' Act 1002 enjoined August 6, 2021; Texas' GA-38 contested in Dallas, Harris, Bexar and Travis Counties through September 2021; Florida's Executive Order 21-175 contested in Leon County) left the practices in those States operating under two inconsistent sets of orders at once.¹¹⁰ The employer in a preemption State in the third quarter of 2021 was not free of orders; it was subject to the OSHA ETS, the CMS rules, the federal travel and conveyance orders, the county and school orders that the preemption instruments purported to displace, and the preemption instruments themselves.

The standing duties

Beneath the emergency orders lay a fourth layer that bound every physician practice, clinic and allied health office on every day of the six quarters whether or not any 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 offenses that punished disobedience of health and emergency orders, and the liability shields that protected only the complying business or provider. 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, and a legislature, a health department, a labor department and an occupational-safety agency are each an appropriate governmental authority.¹¹¹ The layer is set out here for seven States, Texas, Florida, California, New York, New Jersey, Arizona and Colorado; the fifty-one-jurisdiction analysis is at Nothing Was Voluntary.

The orders' own conditions

The measures the Service describes as "beyond the order" were ordinarily the order's own condition of operating, and the verbs are commands. In Texas every licensed professional and facility "shall postpone all surgeries and procedures that are not immediately medically necessary" (Ex. SEC-02-011) and, under Executive Orders GA-28 and GA-29, "Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy of the establishment"; the DSHS protocols, incorporated with "should," are recommendations made compulsory by the statutes and the shield below (Ex. TX-011; Ex. DUT-TX-020). In Florida every licensed practitioner "shall immediately cease performing these elective services" (Ex. SEC-02-020), and resumption was permitted "only if" the order's conditions were met, on pain of a second-degree misdemeanor (Ex. SEC-02-021). In New York "Each employer shall reduce the in-person workforce at any work locations by 50%" (Executive Orders 202.6 and 202.31). In New Jersey procedures resumed only on Department of Health standards (Ex. SEC-02-017; Ex. NJ-016), and from November 5, 2020 every worksite "is required to abide by the following requirements, at minimum" (Executive Order No. 192). In Arizona every business that "serves the public or is an employer shall develop, establish and implement policies based on guidance from the CDC, Department of Labor, Occupational Safety and Health Administration (OSHA) and ADHS," enforceable "by law enforcement and regulatory agencies" until March 25, 2021 (Ex. AZ-019; Ex. AZ-020; Ex. DUT-AZ-013; Ex. AZ-037). In California patrons of reopened businesses "must, when they do so, continue at all times to practice physical distancing" (the State Public Health Officer's order of May 7, 2020; Ex. SEC-02-073). In Colorado "Employers and sole proprietors shall take all of the following measures within the workplace to minimize disease transmission, in accord with the CDPHE Guidance" (Ex. CO-020; Ex. CO-036; Ex. CO-041).¹¹² The note quotes the face-covering commands of Texas, California and Colorado with their companion controls; after each conversion date the compulsion rests on the standing statutes, the shield's condition and the federal layer.

The standing statutes

Standing law commanded the same conduct independently and punished refusal. Texas states the duty on the State and 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 and Safety Code § 81.002, Ex. DUT-TX-001); it made knowing refusal of a control measure a Class B misdemeanor and a felony in an area quarantine (Ex. DUT-TX-002; Ex. DUT-TX-006; Ex. DUT-TX-005), recited the Disaster Act's offense in every order (Ex. DUT-TX-012) and commanded that "Each employer shall" provide "a place of employment that is reasonably safe and healthful for employees" (Labor Code § 411.103, Ex. DUT-TX-013). Florida made violation of "any requirement adopted by the department pursuant to a declared public health emergency" a second-degree misdemeanor and gave the Governor's orders "the force and effect of law" (Ex. DUT-FL-001; Ex. DUT-FL-005; Ex. DUT-FL-007; Ex. DUT-FL-008), leaving the workplace duty to the federal clause (Ex. DUT-FL-015). California gave the Governor's orders the force and effect of law, as the Court of Appeal confirmed (Ex. DUT-CA-005; Ex. DUT-CA-018), commanded every health officer to take the measures necessary against communicable disease (Ex. DUT-CA-002), punished disobedience of health and emergency orders as a misdemeanor (Ex. DUT-CA-003; Ex. DUT-CA-007), commanded that "Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein" (Labor Code § 6400, Ex. DUT-CA-009; Ex. DUT-CA-011) and from November 30, 2020 imposed the COVID-19 Prevention standard on every clinic (Ex. SEC-02-047). New York commanded every health board and officer to guard against communicable disease and gave the Governor the emergency power to suspend laws (Ex. DUT-NY-007; Ex. DUT-NY-010), penalized every violation of a lawful health order (Ex. DUT-NY-001; Ex. DUT-NY-002) and commanded "reasonable and adequate protection to the lives, health and safety of all persons employed" (Labor Law § 200, Ex. DUT-NY-013). New Jersey made the Governor's orders "binding upon each and every person within this State" (Ex. DUT-NJ-006; Ex. DUT-NJ-003) and commanded "a place of employment which shall be reasonably safe and healthful for employees" (N.J.S.A. 34:6A-3, Ex. DUT-NJ-009); its public-employer act (Ex. DUT-NJ-010) left the private practice to the federal clause and the anti-retaliation rule of N.J.A.C. 12:70 (Ex. DUT-FED-001; Ex. DUT-NJ-014). Arizona commanded its department to run the response and its officers to enforce the Governor's orders (Ex. DUT-AZ-001), made knowing refusal to obey an emergency order a class 1 misdemeanor (Ex. DUT-AZ-004; Ex. DUT-AZ-007), an arrest under which the Ninth Circuit upheld (Ex. DUT-AZ-019), and commanded a workplace "free from recognized hazards" (A.R.S. § 23-403, Ex. DUT-AZ-008; Ex. DUT-AZ-009). Colorado gave the Governor's orders the force and effect of law and the power to control the occupancy of premises (Ex. DUT-CO-006), made it "unlawful for any person, association, or corporation" to "willfully violate, disobey, or disregard" a lawful health order (C.R.S. § 25-1-114, Ex. DUT-CO-003) and left the general workplace duty to the federal clause (Ex. DUT-CO-009). That clause bound every private employer in every State: "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 to his employees" (Ex. DUT-FED-001); OSHA said so in March 2020 in its Guidance on Preparing Workplaces for COVID-19, cited employers under it from September 2020 (Ex. LAW-487; Ex. DUT-FED-073), bound every clinic by the Healthcare Emergency Temporary Standard from June 21, 2021 (Ex. SEC-02-001), and the Service's own Office of Chief Counsel has recited it as a requirement on each employer (Ex. GOV-004).¹¹³

The liability shields

Then the legislatures fixed the standard of care. Texas protects a business from a pandemic exposure claim commenced on or after March 13, 2020 unless it "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease" (Ex. DUT-TX-015; Ex. DUT-TX-014); Florida immunizes only the defendant that "made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance" (Ex. DUT-FL-012); Arizona presumes good faith only for a business that "adopted and implemented reasonable policies related to the public health pandemic" (Ex. DUT-AZ-010). New York's and New Jersey's health-care shields carried the condition on health care providers themselves, protecting only services "in accordance with applicable law" until April 6, 2021 (Ex. DUT-NY-016; Ex. DUT-NY-018) and only services "in support of the State's response" to September 1, 2021 (Ex. DUT-NJ-007). California and Colorado enacted none, leaving the presumption of negligence from the violation of any statute or regulation and the ordinary duty of care (Ex. DUT-CA-017; Ex. DUT-CA-013; Ex. DUT-CO-013; Ex. DUT-CO-018; Ex. DUT-CO-020; Ex. DUT-CO-014). In each form the legislature's premise is the same: compliance with the governmental health standards is what a practice owed.¹¹⁴

A practice in any of these States that screened its patients at the door, metered its waiting room, masked and distanced its staff and sent its billing staff home was doing what the reopening order conditioned its operation on, what the standing statutes commanded under penalty and what the shield made the condition of its own protection; the standing duty was the vessel and the pandemic directives filled it. Where an instrument in this layer recommends rather than commands, this analysis says so and names the instrument that made it compulsory. The answers section applies the layer to the Service's voluntariness ground.

The largest metropolitan areas

Why the metros matter

The largest metropolitan statistical areas hold a large share of the industry's establishments, and in each of them a county or city health officer issued orders that were stricter, earlier or longer than the State's. The Notice names "an order from the city's mayor" and "an order from a local health department" as governmental orders, and the statute's phrase "appropriate governmental authority" has never been read to exclude the local health officer whose orders carry criminal penalties under State law.¹¹⁵ The metro orders are catalogued in the Library's metro collections and in the metro table on this page; the lead instruments are these.

New York City, Los Angeles and Chicago

New York City's Emergency Executive Order 100 of March 16, 2020 closed the City's public-facing establishments and its successors were renewed at five-day intervals through 2021; the Commissioner of Health's orders of July 21 and August 10, 2021 required vaccination or testing of City employees and of the staff of City-contracted health and human services providers; and Emergency Executive Orders 225, 228, 239, 247 and 250 of August 16 through September 24, 2021 imposed the Key to NYC proof-of-vaccination requirement for indoor dining, fitness and entertainment.¹¹⁶ Los Angeles County's Safer at Home orders of March 21 and April 10, 2020 confined residents to their homes and closed the establishments the orders did not exempt; the County's Beyond the Blueprint orders of July 16 and August 16, 2021 reinstated indoor face coverings from July 17, 2021, an airborne-transmission control on every indoor public setting in the County including every clinic; the Health Officer Orders of August 26, 2021 governed the Public Health Emergency; the Health Care Worker Vaccination Requirement of August 12, 2021 required vaccination of every health care worker in the County by September 30, 2021, with Pasadena's order of August 20, 2021 to the same effect.¹¹⁷ Chicago's Public Health Orders 2020-1 and 2020-2 of March 18 and 19, 2020 and the amendments of Order 2020-2 through December 2020 governed the City's health care facilities and establishments through the closures and the phased reopening; Public Health Order 2020-9 (Phase 5) of June 11, 2021 lifted the general limits; Public Health Order 2021-1 of August 20, 2021 reinstated the indoor face-covering requirement, an airborne-transmission control on every indoor public space in the City including every clinic; and the Cook County Department of Public Health's Order 2021-10 of August 20, 2021 and Oak Park's order of August 5, 2021 did the same in the suburbs.¹¹⁸

Dallas, Houston, the Washington suburbs, Philadelphia, Atlanta and Phoenix

Dallas County's Stay Home Stay Safe order of March 22, 2020 and Harris County's Stay Home, Work Safe order of March 24, 2020, extended April 3 to April 30, 2020, confined the residents of the two largest Texas counties; in August 2021 Dallas County's orders of August 11, 12 and 16, 2021 required face coverings in schools, child care and businesses "continuing until rescinded," an airborne-transmission control on every indoor business in the County including every clinic and a school infection-control condition, with the quarantine and exclusion rules applied under it, on the workforce's children's attendance, and the Harris County Local Health Authority's order of August 12, 2021 required face coverings in schools, a school infection-control condition on the workforce's children's attendance, each in the teeth of GA-38 and each litigated through the quarter.¹¹⁹ Montgomery County, Maryland's Executive Orders 070-20 and 082-20 of June 1 and 19, 2020 governed the reopening; the County Council's Board of Health Regulation of August 5, 2021 (Resolution 19-975) required indoor face coverings, an airborne-transmission control on every indoor public space in the County, whenever the County recorded substantial transmission, and the notices of August 5 and September 1, 2021 triggered it.¹²⁰ Philadelphia's Emergency Order No. 2 of March 22, 2020 imposed the stay-at-home order; its order of April 8, 2020 governed long-term care facilities to September 23, 2020; the Yellow Phase order of May 29, 2020 followed; the Full Reopening Order of June 15, 2021 lifted the general limits; the amendments of August 11, 12, 13 and 16, 2021 reinstated masking and required vaccination or masking in indoor settings; the Health Alert of August 25, 2021 stated the vaccination-mandate guidance applied to health care personnel under those orders; and the notice of September 14, 2021 required vaccination and masking of City contractors.¹²¹ Atlanta's Executive Order 2020-21 of March 23, 2020, Fulton County's Administrative Order of March 31, 2020 and DeKalb County's Executive Order 20-001 of March 23, 2020 imposed the metro's stay-at-home orders before the State's.¹²² Maricopa County's Regulations Requiring Face Coverings of June 19, 2020, amended June 26, 2020, and Tucson's Proclamation of June 18 and Ordinance No. 11766 of June 19, 2020 required face coverings in Arizona's two largest metros, an airborne-transmission control on every indoor business including every clinic, Maricopa County's until 2021 and Tucson's through the period, and the Maricopa County Superior Court's Administrative Order 2021-073 of May 26, 2021 governed the courts to July 19, 2021.¹²³

Boston, the Bay Area, Detroit, Seattle and the Twin Cities

Boston's Declaration of a Public Health Emergency of March 15, 2020 and the extension of April 24, 2020 governed the City; the Order Requiring Face Coverings of August 20, 2021 (with the Licensing Board's advisory of August 23, 2021 implementing it for licensed premises), Somerville's order of August 19, 2021 and Cambridge's amended order of September 15, 2021 reinstated indoor face-covering requirements across the metro, airborne-transmission controls on every indoor public space including every clinic.¹²⁴ San Francisco's Orders of the Health Officer C19-07 of March 16, 2020 and C19-07b of March 31, 2020 imposed the first stay-at-home orders in the country, and Order C19-12 of April 17, 2020 required face coverings, an airborne-transmission control on every business then permitted to serve the public, including every clinic; Order C19-07y ('Safer Return Together') of June 11, 2021 and its updates of August 2, August 12, August 24 and September 10, 2021 reinstated indoor face coverings from August 3, 2021 and required proof of vaccination for indoor dining, fitness and large events from August 20, 2021, exposure-control conditions on every indoor venue; Marin County's order of August 2, 2021 is the exhibit for the concurrent orders of the seven Bay Area counties, which the health officers' joint announcement of the same date recorded.¹²⁵ Detroit's Emergency Order for Control of Epidemic of October 9, 2020 and its Emergency Epidemic Order of August 25, 2021 governed the City; Oakland and Wayne Counties' orders of August 24 and 27, 2021 required face coverings in schools, school infection-control conditions on the workforce's children's attendance; and the Detroit Public Schools Community District's Fall 2021 plan required face coverings of every person in its buildings and weekly testing of every staff member, school infection-control conditions of the same class.¹²⁶ King County's Local Health Officer orders of March 16 and 28, 2020 closed gatherings and imposed quarantine and isolation directives that ran "until further notice"; the Outdoor and Indoor Masking Orders of September 2, 2021 and the Verification of Vaccination Order of September 16, 2021 governed the Seattle metro through the quarter; and Seattle's Mayoral Directive #9 of August 9, 2021 required vaccination of City employees.¹²⁷ Minneapolis' Emergency Regulations 2020-1, 2020-11 and 2020-12 of March 16, April 23 and May 21, 2020 closed establishments and required face coverings, an airborne-transmission control on every indoor public space in the City, until June 1, 2021; Resolutions 2021R-177 and 2021R-261 of July 1 and August 20, 2021 and the resolution of September 10, 2021 continued the local emergency; Saint Paul's Emergency Executive Orders 2021-33, 2021-35 and 2021-36 of August 3 through September 9, 2021 reinstated masks in City facilities, an infection-prevention control on the public offices a practice's patients and staff use; Ramsey County did the same on August 3, 2021; and the University of Minnesota's Face Covering Protocol of August 2, 2021 governed its clinics.¹²⁸

San Diego, St. Louis, Las Vegas, New Orleans, Honolulu and Denver

San Diego County's Orders of the Health Officer of March 12, March 27 and April 8, 2020 imposed the metro's closures; the Limited Order of June 14, 2021 continued the health care and congregate-setting requirements; and the isolation and quarantine orders of December 24, 2020 and July 22, 2021 ran to July 6, 2022.¹²⁹ St. Louis' Health Commissioner's Orders No. 5 and No. 7 of March 21 and April 16, 2020 imposed the City's stay-at-home order; the Mayoral Proclamation of July 23, 2021 declared a new public health emergency; Health Commissioner's Orders No. 1 and No. 2 of July 26 and August 30, 2021 required face coverings indoors, an airborne-transmission control on every indoor public space in the City; St. Louis County's Face Covering Order of July 26, 2021 did the same; and the County's Rapid Notification Order and Sixth Amended Quarantine and Isolation Order of March 31, 2020 and April 21, 2021 governed exposure reporting by every provider.¹³⁰ Clark County, Nevada's emergency ordinance of April 21, 2020 made violation of the emergency directives an offense; the emergency mitigation measure of July 20, 2021 required masks of County employees and required signage, infection-prevention controls on the County's public offices; and the Eighth Judicial District Court's Administrative Order 21-05 of July 19, 2021 reinstated masks in the courts, infection-prevention controls on the courtrooms a practice's staff use.¹³¹ New Orleans' Mayoral Proclamations of March 16 and 20, 2020 and May 15, 2020 imposed and then modified the City's stay-at-home order and its Health Department's guidelines; the Reopening Guidelines of July 31 and August 13, 2021 reinstated face coverings and required proof of vaccination or a negative test for indoor dining, fitness and entertainment from August 16, 2021, exposure-control conditions on every indoor venue; Executive Order LC 21-05 of August 19, 2021 followed; Jefferson Parish's Proclamation 13 CLS 2021 of August 3, 2021 required face coverings in the Parish, an airborne-transmission control on every indoor space open to the public including every clinic; and the 24th Judicial District Court's orders of July 21 and 30, 2021 governed the courts.¹³² Honolulu's Emergency Order 2020-02 of March 22, 2020 imposed the stay-at-home order, and Emergency Orders 2021-09, 2021-10, 2021-11 and 2021-13 of July 2, August 23, August 30 and September 17, 2021 imposed the Safe Access Oahu proof-of-vaccination requirement and capacity limits through the quarter.¹³³ Denver's Public Health Orders of March 16 and 23, 2020 imposed the City's closures and stay-at-home order; the orders of July 1, August 2 and September 3, 2021 adopted the State's Fourth, Fifth and Sixth Amended Public Health Orders 20-38; the order of August 2, 2021, amended September 1, required vaccination of the personnel of hospitals, clinics, long-term care facilities, schools and City agencies by September 30, 2021; the order of August 17, 2021 required masks in child care, an infection-prevention condition on the workforce's child care; and Boulder County's Public Health Order 2021-08 of September 2, 2021 required face coverings in all indoor public spaces, an airborne-transmission control that reached every clinic in the county.¹³⁴

The sector regulators

The licensing boards and health departments

The instruments that reached the practice most directly were often not the governor's. Florida's Department of Health Emergency Orders 20-002 and 20-003 of March 16 and 21, 2020 permitted out-of-State practitioners to render telehealth services and extended license renewals, and Emergency Orders 20-012, 20-013 and 20-015 carried the modifications until the expiration of Executive Order 20-52 on June 26, 2021, with the renewal extensions carried to June 30, 2021 by Emergency Order 21-001 and § 1 of Emergency Order 20-015 to December 31, 2021.¹³⁵ California's Department of Consumer Affairs issued waivers DCA-20-01 and DCA-20-02 on March 31, 2020 waiving license renewal and reactivation requirements for the health care professions, and renewed them by DCA-21-152, DCA-21-165, DCA-21-173, DCA-21-175, DCA-21-193 and DCA-21-194 through October 31, 2021; the Texas Medical Board's emergency rule of April 30, 2020 governed physicians' notice and compliance obligations under GA-19; Illinois' Department of Financial and Professional Regulation issued temporary out-of-State practice permits from April 2020, a regime its post-period proclamation of May 4, 2023 recites and extended to July 11, 2023.¹³⁶ Pennsylvania's Department of Health issued the reporting, antigen-testing, hospital-reporting and face-covering orders described above; New Jersey's Department of Health issued the Standing Order for COVID-19 Testing of May 12, 2020 and the Executive Directives that outlived the general orders; Delaware's Department of Health and Social Services amended ten licensing regulations in September 2021; Massachusetts' Commissioner of Public Health issued the orders of July 30, August 20, August 26, September 2 and September 15, 2021 governing licensure, vaccination and masks in licensed settings; California's Department of Public Health issued the All Facilities Letters that governed every licensed facility; and Michigan's Department of Health and Human Services issued the laboratory-prioritization order of March 23, 2020 and the residential-care orders of 2021.¹³⁷

The workplace regulators

Virginia's Safety and Health Codes Board adopted the first State COVID-19 workplace standard on July 15, 2020, made it permanent January 13, 2021 and amended it September 8, 2021; Oregon OSHA's temporary rule of November 6, 2020 and permanent rule of May 4, 2021 and its Administrative Order 12-2021 of September 14, 2021 followed; Cal/OSHA's § 3205 ran from November 30, 2020 through the period; Michigan's MIOSHA emergency rules of October 14, 2020 governed every Michigan workplace; Washington's Department of Labor and Industries issued emergency rules on December 16, 2020, May 24, July 6, August 10, August 23 and September 20, 2021; Nevada OSHA enforced Directive 047, itself an order, in every workplace and adopted the federal Healthcare Emergency Temporary Standard as a Nevada standard effective July 1, 2021; and New York's Labor Law § 218-b and the Department of Labor's Airborne Infectious Disease Exposure Prevention Standard of July 6, 2021 required every private employer's plan to be activated on the Commissioner of Health's designation of September 6, 2021.¹³⁸ The paid-leave statutes of New York (Chapter 25 of the Laws of 2020), New Jersey (P.L. 2020, c. 9 and c. 17), Colorado (SB 20-205) and Massachusetts (Chapter 16 of the Acts of 2021, extended by Chapter 55) mandated leave for employees under quarantine or isolation orders through September 30, 2021 and beyond.¹³⁹ The Service's premise that "guidance" and "recommendations" do not count is answered by these instruments: they are rules, adopted under rulemaking authority, enforced by citation and penalty.

The tribal and territorial governments

The Notice's own Q&A-3 treats tribal governments and tribal entities as governments that operate trades or businesses and as employers within the credit, Q&A-4 does the same for employers in the territories, and the enabling statutes and authorities cited in the statute analysis confirm that a tribal or territorial government with power over the commerce, travel or meetings it limited is an appropriate governmental authority.¹⁴⁰ The Navajo Nation's Public Health Emergency Orders of March 20 and 29 and April 17, 2020 imposed a stay-at-home order and a nightly and weekend curfew on the largest reservation in the United States, and its orders of June 18 through August 12, 2021 continued mask requirements, gathering limits and the Nation's reopening status through the third quarter of 2021; the Mescalero Apache Tribe's Executive Orders 20-04 of May 12, 2020 and 21-05 of August 19, 2021 imposed and re-imposed masks and closures; and the Yakama Nation's Public Safety Order No. 3 of June 26, 2020 did the same.¹⁴¹ Puerto Rico's Administrative Bulletin OE-2021-062 of August 5, 2021 required vaccination or testing of health care workers and others until its repeal on November 15, 2021.¹⁴² A practice on or near the Navajo Nation, in Gallup, Farmington, Flagstaff or Page, drew its patients from a population under curfew for most of 2020 and under mask and gathering orders through September 2021.

The counterparties

The hospitals and surgery centers

Every State procedure order above named hospitals and ambulatory surgery centers first, and the hospital's cancelled schedule is the surgeon's cancelled schedule. The hospital-reporting orders (Pennsylvania's daily reporting order as amended August 13, 2021; Louisiana's Emergency Rule 46 on surge transfers of August 12, 2021; Idaho's and Alaska's crisis standards of care activations of September 2021) governed the facilities in which a practice's proceduralists worked, and CMS's survey memoranda of March 4 and 23, 2020 governed the hospitals' and facilities' visitation and infection control.¹⁴³

The nursing homes

CMS's memoranda QSO-20-38-NH of August 26, 2020, QSO-20-39-NH as revised March 10 and April 27, 2021, and QSO-21-19-NH of May 11, 2021, together with the State orders of Ohio (May 4, 2021), Michigan (May 21, 2021), Kansas (June 18, 2021), Maryland (June 15 through September 8, 2021) and New York (July 30, 2021), governed the testing, visitation and vaccination of the facilities into which a practice's physicians, therapists and podiatrists went.¹⁴⁴

The schools

The school mask, quarantine and exclusion orders of the third quarter of 2021 (Pennsylvania's order of August 31, 2021, Illinois' EO 2021-18, Kentucky's EO 2021-585, Rhode Island's EO 21-87, Louisiana's school reporting order and mask proclamations, North Carolina's EO 220 and S.L. 2021-130, the Texas county orders and the Florida rules) determined when a pediatric practice's patients could attend school and when its staff's children could not; the protocols through which those orders were applied (Louisiana's decision tree, North Carolina's toolkit, South Carolina's exclusion list and Ohio's quarantine instructions) are the content the schools applied and are stated here as facts and circumstances.¹⁴⁵

The courts

The judicial emergency orders of the Supreme Courts of Texas, Kentucky, Virginia, Tennessee, Iowa, Michigan, Minnesota, South Carolina and Washington and of the federal district courts governed the depositions, hearings and collection actions in which a practice's physicians and billing staff appeared.¹⁴⁶

The transit systems and the housing courts

The CDC conveyance order and the TSA directives governed the buses and trains on which patients and staff travelled, and the CDC eviction orders of June 24 and August 3, 2021, New Jersey's Executive Order 106, Illinois' Executive Order 2020-30, Washington's Proclamation 21-09 and California's AB 832 governed the landlords who were the practices' patients and, for the practices that own their buildings, the practices themselves.¹⁴⁷

The ecosystem

The six mechanisms

Six mechanisms carry an order addressed to one actor to another: the direct mandate, the conditional permission, the counterparty closure, the supply allocation, the workforce constraint and the demand suppression. For this industry every mechanism operated. The direct mandate is the procedure order and the ETS. The conditional permission is the resumption order that permitted procedures only on conditions of PPE inventory, testing and capacity. The counterparty closure is the hospital, nursing home, school and court order. The supply allocation is the DPA and FEMA chain. The workforce constraint is the quarantine order, the school closure, the FFCRA leave mandate and the vaccination requirement. The demand suppression is the stay-at-home order, the travel quarantine and the gathering limit that kept patients away from a clinic that was lawfully open. The gathering limits also reached the specialty-society meetings, conventions, seminars, health fairs and school and employer gatherings through which this industry earns its continuing education, recruits and trains its staff, meets its suppliers and acquires its patients; the Library's meetings collection records those events with the venue orders in force on their dates. The ecosystem section below takes the mechanisms up; here it is enough to record that each is an order, traceable in the Library, and that the Notice's Q&A-12 recognizes the third and Q&A-17 the second.¹⁴⁸

Foreign orders as facts and circumstances

A foreign government is not an "appropriate governmental authority" within the meaning of the statute, and this analysis does not treat a foreign order as one. Foreign orders are facts and circumstances. The travel proclamations described above suspended entry from China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa and India for all or part of the period (China and Iran from early 2020; the Schengen Area, the United Kingdom and Ireland from March 2020; Brazil from May 2020; South Africa from January 2021; India from May 2021; all to November 8, 2021), and the governments of those countries and of Canada and Mexico imposed exit and entry conditions of their own; the consequence for a practice with international patients, medical-tourism referrals, foreign-trained physicians awaiting visas or a research relationship with a foreign institution is a fact about the practice's operations that the domestic orders produced and that the foreign orders confirm.¹⁴⁹ A practice in El Paso, San Diego, Detroit or Buffalo whose patients crossed a land border that the Department of Homeland Security closed to non-essential travel from March 21, 2020 through the whole of the third quarter of 2021 was subject to a domestic order that a foreign order mirrored.