Social Assistance and Community Services

For every quarter, the six-quarters section lists the orders in force on the quarter's first and last day, by issuer, date and terms, with exhibit identifiers, and the State, metro and federal tables on this page tabulate them. For the third quarter of 2021 alone the list runs to the OSHA standard on every adult day health center, intermediate care facility and group home with nursing services, QSO-21-14 and the vaccine-offering condition on every intermediate care facility, Appendix K in every State, HUD Notice CPD-21-08 on every ESG-CV shelter from July 19, the conveyance order on every van, New Jersey's reopening directives and Executive Order 252, the shelter and congregate-program face-covering orders of eight States, airborne-transmission controls kept on those settings after the public was released, and the vaccination and testing mandates naming adult day, group-home, congregate-setting and shelter workers in California, New Mexico, New Jersey, Illinois, Rhode Island, Delaware, Maryland, New York, Connecticut, Washington, Oregon, the District of Columbia, New York City, Denver, Los Angeles County, Marin County and Philadelphia.²⁴⁴ A form sentence that no orders were in effect is not the "case-by-case" determination the United States described to the District Court, and the National Taxpayer Advocate has reported that the letters carrying it were issued without examination.²⁴⁵ The sentence describes a quarter that did not occur, and the Service's records, whatever they contain, do not contain the Federal Register, the Ohio Director's orders or the New Jersey Department of Health's directives.

The word "essential" is not in the statute. The essential-services designations that named "residential settings and shelters for adults, seniors, children, and/or people with developmental disabilities," food banks and human-services field offices permitted those operations to continue; they exempted no adult day center from the closure orders, no group home from the visitation bans, no shelter from the non-congregate sheltering and face-covering orders, and no waiver-funded service from Appendix K.²⁴⁶ Illinois's own order proves the point: the same section that named residential settings and shelters essential closed every congregate day program in the State.²⁴⁷ The Notice itself provides that an employer so designated "may be considered to have a partial suspension of operations if, under the facts and circumstances, more than a nominal portion of its business operations are suspended by a governmental order," and the United States told the District Court that an employer "could be considered to have a partial suspension due to the governmental order if it was required to suspend certain operations for certain purposes."²⁴⁸ A group home that "remained open" as a residence while its visitation, communal dining, group activities, day programming and staffing were fixed by order was partially suspended by that order; the designation was a permission to operate under the orders, not an exemption from them.

The statute says nothing of the source or addressee of the order; it asks whether the order limited "commerce, travel, or group meetings." The Notice's own list of qualifying orders includes "A State's emergency proclamation that residents must shelter in place" and "An order from a local official imposing a curfew on residents," both addressed to the public, and the United States quoted that list to the District Court as the statute's meaning and told the Ninth Circuit that a business "may be suspended 'due to' a government order addressing a third party."²⁴⁹ The orders that reached this industry were, moreover, directed at its operations in terms: "All facilities that conduct adult day services or other senior citizen centers are hereby closed"; "all public-facing businesses that encourage public congregation," including "community and recreation centers," "shall cease all in-person operations"; "Adult Day Support or Vocational Habilitation Services in a Congregate Setting" closed "until this Order is amended or rescinded"; "Senior centers, adult day centers and senior congregate nutrition programs may reopen" at 30 percent; "adult day care facility staff must either provide evidence of COVID-19 vaccination, or undergo regular testing."²⁵⁰ The position rewrites the statute and misdescribes the orders.

"Comparable operations" and "telework" are not in the statute; Tri-State defines a partial suspension as a temporary delay, interruption or termination of a portion of the business, and a day center whose participants were sent home by order has had its congregate portion terminated for the duration of the order. The Notice's own words confirm it. Q&A-15 provides that where "the closure of the workplace causes the employer to suspend business operations for certain purposes, but not others, it may be considered to have a partial suspension of operations due to the governmental order," and its Example 2 treats a physical therapy practice that "moves to an online format" but whose "workplace, including access to physical therapy equipment, is central to its operations," as partially suspended; Q&A-16 provides that where the physical work space is so critical that central tasks cannot be performed remotely "this factor alone indicates that the employer is not able to continue comparable operations"; Q&A-17 provides that a compelled modification with more than a nominal effect is a partial suspension.²⁵¹ Adult day care, day habilitation, congregate meals, sheltered work, residential care, food distribution and shelter cannot be performed by telephone; they are the physical therapy practice of Example 2 and the laboratory of Example 3. A case manager who telephoned a family instead of visiting, a job coach who telephoned instead of standing beside a worker on a production line, and a day-habilitation aide who delivered a remote activity under Appendix K continued the portion of the operation the orders left them; the congregate portion, which is the industry, was terminated. The comparable-operations sentence with which Q&A-15 opens is not in the statute, has no force of law by the United States' own account, and is not applied here.²⁵² The position substitutes a word Congress did not write for the one it did.

Q&A-13 addresses an employer that suspends operations because of "a reduction in demand." The exclusion in the form the Service now applies, reaching every employer and any "reduction in demand," first appeared on March 1, 2021; as posted April 29, 2020, FAQ 32 confined it to "an essential business that is not required to close its physical locations or otherwise suspend its operations" and to a suspension claimed "for the sole reason" of its customers' orders.²⁵³ This analysis relies on no reduction in demand. It relies on orders that closed the industry's centers by name, barred visitors from its residences, converted its meals by statute, rewrote its payment and grant terms, closed the courts in which it appears and the manufacturers whose contracts it fills, and confined the volunteers who staff its pantries, and it treats those orders as orders limiting commerce, travel and group meetings under the statute's text, Q&A-12's logic and the United States' admission that a third-party order counts.²⁵⁴ A stay-at-home order on the older adults and adults with disabilities whom this industry serves is itself an order limiting commerce, and the commerce it limited was this industry's. Q&A-13 describes an employer that "responds to the lack of demand by suspending some or all of its operations." This analysis describes no response to demand; it describes orders that closed the buildings, and where Q&A-13 would exclude an order confining the people served it adds to the statute words the United States has represented have no force of law. The Service's invocation of Q&A-13 against an industry whose premises were closed by name misdescribes both the orders and the industry.

A senior center closed because the Governor of Iowa proclaimed that "[a]ll facilities that conduct adult day services or other senior citizen centers are hereby closed," a group home that barred visitors because the Governor of New Hampshire ordered that residential care facilities "shall prohibit visitor access," a day-habilitation program that delivered services in participants' homes because its Appendix K amendment fixed that term, a shelter that moved residents into hotels because a county health officer ordered non-congregate sheltering, and an adult day center that tested its unvaccinated staff weekly because PIN 21-33-ASC required it are not voluntary. Q&A-14 describes an employer that closes without any order; every modification described here is traced to an order with an exhibit identifier.²⁵⁵ Where an employer adopted a nationwide policy to comply with the orders of the jurisdictions that bound it, Q&A-20 makes it eligible "with respect to all of its operations in all locations."²⁵⁶ Tri-State held on the same argument that the changes an order compelled "were not voluntary."²⁵⁷ A modification traced to an order with an exhibit identifier is not voluntary, and the position that it was describes an employer that appears nowhere on this page.

Q&A-14 reaches, by its own terms, only a suspension "not due to a governmental order," and the United States and the District Court have defined the excluded employer as one that "chooses not to" continue and is "not being ordered to do so."²⁵⁸ No employer in this industry answered that description in any of the six quarters. The reopening orders permitted a program to operate only on conditions with the force of law, "only to the extent that the establishment complies" in Iowa, "so long as all safety standards are met" in Ohio, in "full compliance with this PIN" in California, under the protocols of Executive Directive 21-007 in New Jersey.²⁵⁹ Standing law commanded the same conduct independently: Texas's Health and Safety Code § 81.002 ("Each person shall act responsibly to prevent and control communicable disease") and Labor Code § 411.103, Ohio's R.C. 3701.352 and 3701.81(C), New Jersey's N.J.A.C. 8:57-1.11, New York's Labor Law § 200, California's Labor Code § 6400, Florida Statutes § 381.00315, Iowa Code § 88.4(1), Virginia Code § 40.1-51.1(A) and, over every private employer, the general duty clause, enforced by citation from September 2020.²⁶⁰ The legislatures of Texas, Florida and Iowa then fixed the standard of care as compliance with governmental standards, guidance and protocols.²⁶¹ The safe-workplace statutes had no COVID-19 content until the health authorities said what a safe congregate setting required; the measures were taken because those directives defined the duty and would not have been taken without them. "Due to" is but-for causation, and the causation here runs from the command to the measure without an intervening choice.²⁶² The Notice's own words confirm it: a modification "required by a governmental order as a condition of reopening a physical space for business or service to the public" is a partial suspension due to the order.²⁶³ A statute that commands conduct is an order from an appropriate governmental authority, and the statute says nothing of the source of the command. The Service's premise under Q&A-14, that no command reached the employer, fails wherever one did, and in this industry one reached every employer on every day of the period.

The ten percent figure is, in the United States' words, "not determinative," "[e]ffectively ... a safe harbor," "isn't an eligibility requirement," "a quintessential safe harbor," "a safe harbor rather than a hard floor"; the District Court held it "is not an exclusionary cut-off point"; and Tri-State held that the Notice "provides a method for the test to be met not as a requirement to meet the test" and that reading it as a requirement "would read requirements into the statute that do not exist."²⁶⁴ The showing for this industry exceeds the safe harbor many times over on its own terms: a closed adult day center earns no unit; a day-habilitation program delivering services in participants' homes under Appendix K has terminated its congregate operation entirely; a group home that barred visitors and cancelled group activities has interrupted the portion of its operation that its residents' families and its activity staff performed; a sheltered workshop whose customer plants were closed has no production; a congregate-meal program converted to home delivery has replaced its dining room with a route.²⁶⁵ The figure did not exist when the second quarter of 2020 closed: no percentage appeared in the Service's FAQs of April 29, 2020 or June 19, 2020, and the deeming rules first appeared on March 1, 2021.²⁶⁶ The position applies as a floor a figure the United States has told two federal courts is not one.

The modifications described here are closure, capped occupancy, barred visitation, cancelled communal dining and group activities, converted meals, remote delivery under Appendix K, non-congregate sheltering, weekly testing, vaccination verification, medical removal and the reopening protocols of licensing directives, and the face-covering orders of July through September 2021 are treated as what they are: workplace infection-prevention and exposure-control orders from appropriate governmental authorities, enforced by penalty, that conditioned every congregate program and shelter in the States that issued them. Q&A-18 itself lists face-covering requirements among the modifications "required by a governmental order as a condition of reopening a physical space for business or service to the public" and provides that a modification "that results in a reduction in an employer's ability to provide goods or services in the normal course of the employer's business of not less than 10 percent will be deemed to have more than a nominal effect," and the United States told the District Court that "employees having to wear face masks may impact business operations."²⁶⁷ The categorical sentence that mask and glove requirements "will not result in more than a nominal effect" first appeared in the Notice released March 1, 2021; it did not exist in any quarter of 2020 to which the Service applies it, and the FAQs as posted April 29, 2020 provided without qualification that a workplace closed "for certain purposes, but ... open for other purposes ... would be considered to be partially suspended."²⁶⁸ Tri-State held that "the required protocols and procedures to comply with the Proclamation" were suspensions the order caused and refused the argument that they were nominal.²⁶⁹ A senior center at 30 percent of fire occupancy is not a modification with a nominal effect; it is a seventy-percent closure. An adult day program whose unvaccinated staff must test weekly and wear respirators, and whose participants must mask indoors, under a licensing notice with a compliance date, operates in a manner the order fixed. The position that such orders had a nominal effect on such a program describes an operation that did not exist in this period; it is factually incorrect.

This analysis relies on no bare declaration as a suspending order. Each instrument in the layers and six-quarters sections limited commerce, travel or group meetings in terms. Where an emergency declaration is cited, it is cited as the instrument under which those orders were issued and continued (the Illinois proclamation renewed every thirty days; New Jersey's State of Emergency and P.L. 2021, c. 103; Massachusetts's chapter 17, § 2A declaration; Delaware's public health emergency of July 12, 2021), or as proof of a period, which the Notice's own text allows.²⁷⁰ The ground answers an argument this analysis does not make.

Chief Counsel memoranda "may not be used or cited as precedent," by their own legend, which Tri-State quoted in declining to rely on the Chief Counsel memorandum the United States offered there.²⁷¹ The suppliers and counterparties of this industry are the State Medicaid agencies whose Appendix K amendments rewrote its payment terms, the courts, schools, hospitals and benefits offices that were closed or converted by order, the manufacturers whose plants were closed by order, and the grocers and food processors whose operations were capped or ordered by the Defense Production Act; each was closed or conditioned by an order with a date and an exhibit identifier, and nothing here is attenuated. The United States told the Ninth Circuit that the supplier rule "never even mentions a 'physical[ ] clos[ure]' order against the supplier," and told the District Court that an employer is eligible where its operations are suspended "because of the supplier's inability to deliver."²⁷² Causation is but-for on the United States' own agreed definition: absent the order closing the manufacturer, no law cancelled the sheltered workshop's contract; absent the Appendix K amendment, no rule required the day program to rebill its units.²⁷³ The position describes an attenuated chain that appears nowhere on this page; a Medicaid agency's approved waiver amendment is not a supply-chain effect, and a Chief Counsel memorandum that cannot be cited as precedent is not the statute.

For the third quarter of 2021 the orders had not lifted: the third-quarter inventory above lists, with dates, the orders in force on July 1 and September 30, 2021, and the paragraph that follows it names the expired instruments on which the proof does not rest. Where the position means that a suspension compelled by an order that expired on June 2 (Ohio) or June 15 (New Jersey) ended at midnight, it misreads the clause, which asks whether the operation "is fully or partially suspended during the calendar quarter," and it contradicts Tri-State's definition of a suspension as a "delay," Q&A-22's whole-quarter rule and Q&A-16's transition rule.²⁷⁴ The interconnected-economy section states the restoration from the orders' own steps: fifteen months closed in New Jersey and then protocols; fourteen and a half months of Director's orders in Ohio; a year closed in Maryland and then directives; ten months at 30 percent in Delaware. The position mistakes the date an order lapsed for the date the suspension it compelled ended; the clause asks about the second.

The gross-receipts prong is not relied on. The statute makes an employer eligible on either prong, and the United States admitted in Tri-State that the gross-receipts test is "another method to qualify," on which the court held "the fact an employer can be eligible and affected without partial or full suspension is reasonable."²⁷⁵ The suspension prong asks about operations, not revenue, and it is satisfied in every quarter. The ground answers a prong this analysis does not invoke; Congress joined the two prongs with "or."

Every instrument this page relies on as a suspending order is an order, proclamation, rule, directive, statute, approved waiver amendment, grant notice or administrative order with the force of law, issued under a recited statutory or constitutional power and enforced by penalty, license, contract or the conditions of federal payment.²⁷⁶ Where a State made a federal guidance document binding by incorporating it into an order, as Louisiana did for QSO-20-39-NH and Washington did for its long-term care guidance, the binding instrument is the order, and it is the order that is cited.²⁷⁷ Where the Library classifies an agency release or web page as a service announcement rather than an order, this page cites it as context for a closure imposed by other means and never as an order.²⁷⁸ The Notice itself provides that whether an instrument is a governmental order "is determined without regard to the level of enforcement."²⁷⁹ An instrument enforced by fine, licensure, contract clause or the withholding of federal financial participation is not a recommendation, and the position that it is misdescribes every instrument this page names.

Agreed. An "order" is "An authoritative indication to be obeyed; a command or direction," and the United States agreed in Tri-State that the clause is read by "plain meaning."²⁸⁰ Every instrument in the findings below is a command from a competent authority to do or refrain from doing something on pain of sanction: to close, to reopen at 30 percent, to bar visitors, to test staff, to deliver services in the home, to house residents in hotels, to verify vaccination. That is the ordinary meaning, and it is satisfied.

The Service is free to disagree about the weight of these instruments. It is not free to say they did not exist.