The governmental orders by layer
The orders that reached this industry came in seven layers, and every layer carried force-of-law instruments in force on the first and last day of each of the six quarters: the federal layer (Congress, HUD, CMS, OSHA, the CDC, the TSA, the Department of Labor and the President); the fifty States and the District of Columbia, whose governors and health officers closed the congregate functions by name or by category and whose Medicaid, aging and disability agencies rewrote the payment terms of every waiver-funded service; the largest metropolitan areas, whose county judges, mayors and health officers closed senior centers and adult day care, ordered non-congregate sheltering and, in the third quarter of 2021, conditioned the employment of shelter and congregate-setting staff on vaccination or testing; the sector regulators, whose licensing instruments fixed the conditions of every reopening; the counterparties, whose own orders closed the courts, schools, hospitals, benefits offices, manufacturing plants and transit systems on which the industry's functions depend; the ecosystem of borders, supply chains and workforce that the interconnected-economy section describes; and, as facts and circumstances only, the foreign governments' orders that fixed the conditions under which the federal instruments operated. Beneath all seven lay the standing duties that the last subsection sets out: the statutes, workplace-safety laws and liability shields that commanded the same conduct in every State whether or not any order named the employer.
A. The universe
The governmental response to COVID-19 was not a handful of orders; it was a body of governmental commands on commerce, travel and assembly that the public record counts in the tens of thousands, and every count of it is a floor. By May 31, 2020, according to the Centers for Disease Control and Prevention, 42 States and territories had issued mandatory stay-at-home orders reaching 2,355 of the nation's 3,233 counties, and "most jurisdictions issued multiple orders."14 The Council of State Governments counted 2,065 executive orders issued by governors and State agencies between February 2020 and June 29, 2020 alone, before four of the six claimable quarters had begun.15 The Department of Health and Human Services' own dataset records 4,218 State and county policy-order entries between March 23, 2020 and August 31, 2021, and its curators stopped coding in the spring of 2021.16 The COVID AMP database catalogued nearly 50,000 policy measures worldwide, including more than 20,000 at the United States national and State level, 95 percent of them issued before November 23, 2021, and approximately 8,000 issued by United States counties.17 On July 2, 2021, the day after the third quarter of 2021 opened, thirty-five jurisdictions, the District among them, kept emergency declarations in force; on September 21, 2021, twenty-five did, and eleven kept statewide face-covering requirements, the airborne-transmission control on every indoor workplace that the trackers count.18 The Commerce Department attributed the largest quarterly decline in gross domestic product on record to "'stay-at-home' orders issued in March and April," and the Comptroller General wrote that "millions have lost their jobs due to stay-at-home orders and business closures aimed at 'flattening the curve.'"19 The Library indexes the instruments The COVID Project has retrieved and verified. Each of its counts is a count of the instruments indexed, not of the orders that reached any employer or of the orders that existed, which the sources above place in the tens of thousands. This page cites more than one hundred and fifty of those exhibits by identifier.
B. The federal layer
The second quarter of 2020
Congress acted first. The Families First Coronavirus Response Act of March 18, 2020 and the Department of Labor's implementing rule made paid leave compulsory from April 1, 2020 for every employer of fewer than 500 employees whenever "a Federal, State, or local quarantine or isolation order related to COVID-19" or the closure of a school or place of care ordered by "a State or local official or authority" kept a worker from working, a mandate that ran to December 31, 2020 and that Indiana's Governor applied to this industry in terms by classing "any employee of any provider of support to people with intellectual and developmental disabilities, older adults, or individuals with mental health needs" as a health care provider for the exclusion.20 The CARES Act of March 27, 2020 rewrote the congregate-meal function: under section 3222, "the same meaning shall be given to an individual who is unable to obtain nutrition because the individual is practicing social distancing due to the emergency as is given to an individual who is homebound by reason of illness," and every State unit and area agency on aging was authorized "without prior approval, to transfer not more than 100 percent of the funds received" between congregate and home-delivered nutrition, for the duration of the section 319 public health emergency.21 HUD's Office of Community Planning and Development issued its waiver memorandum on March 31, 2020, waiving for every Emergency Solutions Grants and Continuum of Care recipient the monthly case-management requirement, the re-evaluation frequency for homelessness prevention, habitability inspections, one-year leases and other rules "to prevent the spread of COVID-19," while providing that "[p]rovisions that are not specifically waived remain in full effect."22 CMS issued QSO-20-23 to every intermediate care facility for individuals with intellectual disabilities on March 30, 2020, directing facilities to "actively screen and restrict visitation or healthcare service providers (e.g. contract therapist)" by persons with symptoms or exposure, and made the section 1135 blanket waivers retroactive to March 1, 2020.23 CMS approved Appendix K emergency amendments to the States' section 1915(c) waivers from March 2020: Pennsylvania's carries a start date of March 6, 2020 and applies "to all individuals impacted by the virus or the response to the virus (e.g. closure of day programs, etc.)," authorizing remote assessments, retainer payments, electronic service delivery and the suspension of "requirements for allowing visitors in provider owned and operated settings"; North Dakota's Governor suspended by executive order the statutes "necessary for the operation of the Medicaid State Plan disaster amendments, Appendix K and the provisions of the 1135 Waiver"; and Minnesota's Governor authorized the Commissioner of Human Services to "temporarily waive or modify" the Human Services Licensing Act and the program standards of chapters 245D through 245H that govern adult day services, day training and habilitation and community residential settings.24 The President delegated Defense Production Act allocation authority over "all health and medical resources" on March 18, HHS designated fifteen categories of respirators, masks, gloves, gowns and disinfectants as scarce materials on March 25, and FEMA forbade the export of five categories of personal protective equipment without federal allocation from April 7, 2020, fixing the supply conditions of every group home, day center and shelter in the country.25 The Social Security Administration announced that from March 17, 2020 its field offices would offer telephone service only, a closure to the public that ran to April 7, 2022 and that is cited here as the agency's own account of the fact, not as an order.26
The third and fourth quarters of 2020
The federal leave mandate ran the whole of the third quarter and expired December 31, 2020.27 HUD issued Notice CPD-20-08 on September 1, 2020, fixing the waivers and alternative requirements for the $3.96 billion in ESG-CV funds appropriated by the CARES Act for shelters and re-housing providers, a notice recited and superseded by Notice CPD-21-08 on July 19, 2021.28 The CDC ordered on September 1, 2020, effective September 4, that a landlord "shall not evict any covered person from any residential property," an order extended through the winter and into 2021 that governed the homelessness-prevention and rapid re-housing functions of every ESG and CoC provider.29 CMS's testing condition for nursing facilities took effect September 2, 2020, and QSO-20-39-NH replaced the March visitation closure with a conditioned framework on September 17, 2020; the group homes and intermediate care facilities of this industry remained under QSO-20-23's visitation restriction and under the State orders that swept them in with nursing homes.30
The first and second quarters of 2021
The CDC's conveyance order, the airborne-transmission control the federal government placed on every conveyance and its operator, took effect at 11:59 p.m. on February 1, 2021 "until further notice," providing that "[a] conveyance operator transporting persons into and within the United States must require all persons onboard to wear masks for the duration of travel," enforced by criminal penalty, and the TSA's security directives of January 31, 2021 required every transit agency and bus operator to give notice that "Federal law requires wearing a mask," to refuse boarding and to remove violators; every participant van, paratransit trip and staff commute in this industry ran under those instruments from that day through the end of the third quarter of 2021.31 CMS replaced QSO-20-23's visitation restriction with QSO-21-14 on February 10, 2021, permitting visitation at intermediate care facilities only under "core principles of COVID-19 infection prevention," with screening of all who enter, face coverings, physical distancing and limits during outbreaks, and revised it on June 3, 2021.32 Congress re-enacted the Suspension Clause for the third and fourth quarters of 2021 on March 11, 2021 and, in the same statute, conditioned an enhanced federal match for home and community-based services from April 1, 2021 through March 31, 2022 on State spending plans that reached every waiver-funded provider in this industry.33 CMS's interim final rule of May 13, 2021, effective May 21, added 42 C.F.R. § 483.460(a)(4), requiring every intermediate care facility to educate residents and staff about the COVID-19 vaccine, to offer it and to report vaccination status.34 The Secretary of Labor's Healthcare Emergency Temporary Standard, 29 C.F.R. § 1910.502, was published and effective June 21, 2021, applying "to all settings where any employee provides healthcare services or healthcare support services," which reached every adult day health center, every intermediate care facility and every group home in which nursing services are provided, with compliance required by July 6 and July 21, 2021 and enforcement under 29 U.S.C. § 666 through the inspection directive of June 28, 2021.35 The CDC extended its eviction moratorium on June 24, 2021 to July 31, 2021.36
The third quarter of 2021
The six-quarters section sets out the third-quarter federal layer instrument by instrument: the OSHA standard on every health care setting; QSO-21-14 on every intermediate care facility; the vaccine-offering condition; Appendix K and the section 1135 waivers, kept alive by the renewal of the public health emergency effective July 20, 2021; HUD Notice CPD-21-08 from July 19, 2021; CARES Act § 3222 through the emergency; the conveyance order and the TSA directives on every day; the CDC eviction moratorium to July 31 and its successor from August 3 to August 26, 2021; the federal workplace and contractor rules that governed every program sited in a federal building and every AbilityOne contract; the entry proclamations and land-border prohibitions in force on every day; and the enhanced-match conditions of ARPA § 9817.37
C. The fifty States
The pattern
The industry's State regime had three tiers. In the first tier twelve States and localities closed the industry's congregate functions by name: Iowa, Maryland, Pennsylvania, Ohio, Alabama, Louisiana, New Jersey, Kentucky, Tennessee, Delaware, Miami-Dade County and Minneapolis, with Nassau County, Fairfax County, Summit and Salt Lake Counties, Milwaukee County, Louisville and Lexington closing their own senior and community centers by local action. In the second tier every other State closed the same functions by category, as non-essential congregate operations, under the stay-at-home and closure orders of March and April 2020, and reopened them only under phased frameworks whose gathering caps, occupancy percentages and workplace infection-prevention and exposure-control requirements (screening, distancing and face coverings among them) ran into 2021. In the third tier, which operated in every State, the State Medicaid agency's Appendix K amendment rewrote the payment terms of every waiver-funded day, residential and transportation service, the State health department's orders governed visitation, testing and infection control at every group home and intermediate care facility, and the State's aging agency converted its congregate meals under CARES Act § 3222. The narrative below runs by region; the State table on this page states the fifty-one rows.
The Northeast
Pennsylvania closed every adult day care center, adult training facility, vocational facility, LIFE center and senior community center from March 17, 2020, as the Governor's release of March 16, 2020 recorded ("[a]dult day care centers, adult training facilities, [vocational] facilities, LIFE centers and Senior Community Centers close beginning Tuesday, March 17"), a closure ordered through the Departments of Human Services and Aging, whose directives are described here by category, the release being the Commonwealth's own account at the time and cited as context; the Orders of the Governor and of the Secretary of Health Regarding the Closure of All Businesses That Are Not Life Sustaining of March 19, 2020 closed them by order two days later, a week before the stay-at-home orders that ran to June 4, 2020; the Department of Health ordered universal baseline testing at personal care homes, assisted living residences and intermediate care facilities on June 26, 2020, with baseline completion by August 31, 2020, following its order of June 8, 2020 for nursing care facilities; the Commonwealth's Appendix K to the Community HealthChoices and OBRA waivers carried a start date of March 6, 2020; the general mitigation, telework, capacity and gathering orders ended May 31, 2021 and the universal face-covering order, the last of the Commonwealth's general airborne-transmission controls, June 28, 2021; and in the third quarter of 2021 the Commonwealth required vaccination or testing of its employees in health and congregate facilities from September 7, 2021, ordered face coverings in every school and child-care program from September 7, 2021, one of the 2021-22 school and child-care infection-prevention controls (masking, testing and quarantine) on the settings where the workforce's children were, and Philadelphia's Board of Health required vaccination of health care workers by regulation effective August 16, 2021.38 New Jersey's Governor ordered every resident to stay home and every non-essential retail business to close on March 21, 2020, with a telework mandate that ran to June 4, 2021; the Department of Health closed every licensed adult day health services facility by county-by-county orders by the end of March 2020, barred visitors from long-term care facilities from March 16, 2020, brought group-home pools under its standards on July 1, 2020, issued a standing testing order for covered facilities including developmental-disability settings on December 2, 2020, and permitted adult day health services facilities to reopen only under Executive Directive 21-007 on June 15, 2021, with PACE centers reopening under Executive Directive 21-006 the same day; the Legislature continued the Department's directives to January 11, 2022 when the public health emergency ended June 4, 2021; the Governor capped events "hosted by senior centers" at 250 on May 19, 2021 while ending general capacity limits on May 28; and Executive Order 252 of August 6, 2021 required, effective September 7, 2021, that "licensed community residences for individuals with intellectual and developmental disabilities," "licensed community residences for adults with mental illness" and "certified day programs" maintain a vaccination-or-testing policy for covered workers.39 New York's Governor cancelled gatherings of any size and reduced the in-person workforce of every business outside the essential list by 100 percent from March 22, 2020; Nassau County closed every county-operated senior center "until further notice" on March 13, 2020 and kept them closed by Executive Order 130 of October 2, 2020; the Executive Order 202 series ended June 25, 2021; and in the third quarter of 2021 the Department of Health's emergency regulations imposed under 10 NYCRR 2.60, as an airborne-transmission control on the settings the State kept regulating, indoor face coverings in homeless shelters and other listed settings from August 27, 2021, required personnel of "covered entities" including adult care facilities to be vaccinated under 10 NYCRR 2.61 from August 26, 2021, and required weekly testing of unvaccinated school staff from September 2, 2021, while New York City's Commissioner of Health ordered from August 16, 2021 that "each staff member or contractor working at a residential or a congregate setting" operated by or under contract with the Department of Homeless Services, the Human Resources Administration and the Department of Health and Mental Hygiene provide proof of vaccination or a weekly negative PCR test.40 Massachusetts's COVID-19 Order No. 13 closed every non-essential workplace from March 24, 2020; the Order No. 33 and Order No. 59 regimes carried offices, retail and services to 25 percent capacity from December 26, 2020, to 40 percent from February 8, 2021 and to 50 percent from March 1, 2021, with Phase 4 from March 22, until Order No. 69 rescinded the Civil Defense Act orders at 12:01 a.m. May 29, 2021; when the Civil Defense Act orders ended on May 29, 2021 the Governor declared a public health emergency under General Laws chapter 17, § 2A, under which the Commissioner of Public Health imposed, as an airborne-transmission control on the settings the Commonwealth kept regulating after it released the public, face coverings from May 29, 2021 in "congregate care facilities or programs operated, licensed, certified, regulated, authorized, or funded by the Commonwealth," in emergency shelter programs and in Executive Office of Health and Human Services day programs, reissued the long-term care control order on June 14, 2021, and, in the third quarter of 2021, required vaccination of nursing-home personnel by October 10 (August 4), of home care agency workers by October 31 (105 CMR 159.000, September 8), of State employees (Executive Order 595, August 19), required face coverings of school students and staff from August 25 under the Department of Elementary and Secondary Education's requirement, one of the 2021-22 masking, testing and quarantine controls on the settings where the workforce's children were, and suspended, "to address staffing shortages in Community Programs," the medication-administration certification rule so that non-certified staff could administer medications (Public Health Emergency Order No. 2021-8, September 15, 2021).41 Connecticut capped gatherings at 50 on March 16 and closed non-essential businesses from March 23, 2020; its general restrictions ended May 20, 2021 while its emergency ran to February 15, 2022; and in the third quarter of 2021 Executive Order 13A imposed face coverings in homeless shelters and other settings from August 5, an airborne-transmission control on every listed setting, the Department of Public Health ordered universal masking in every school, child-care facility, health-care setting, shelter, correctional facility and transit hub from August 7, an airborne-transmission control on each of those settings, Executive Orders 13B and 13F required long-term care facilities including intermediate care facilities to have staff vaccinated by September 27, 2021, and Executive Order 13D required State employees and school and child-care staff to be vaccinated or tested weekly from September 27, 2021.42 Rhode Island's stay-at-home order ran March 28 to May 8, 2020, its Department of Business Regulation named food banks among critical retail businesses on April 3, 2020, its general caps ended May 21, 2021 and its reopening orders and its face-covering order, the airborne-transmission control on every indoor workplace, July 6, 2021, and its emergency ran through September 30, 2021; on August 17, 2021 the Department of Health adopted 216-RICR-20-15-8, requiring every health care worker in a licensed health care facility, expressly including "adult day care," to be vaccinated by October 1, 2021 and, until then, to mask and test, and the Governor declared a variant emergency on August 19 and issued the executive orders of August 26 and September 24, 2021.43 Vermont suspended in-person business operations from 5:00 p.m. March 25, 2020 under Addendum 6 to Executive Order 01-20, kept adult day programs closed under that order and its successor, the Amended and Restated Executive Order 01-20 of June 15, 2020, and the Governor's release of June 17, 2020 recorded that senior centers could reopen under the Amended and Restated Executive Order while stating "This announcement does not mean Adult Day programs can resume" (the State's own record of the closure's continuation under the order, cited as context); the long-term care visitation rules continued to June 15, 2021; and Executive Order 06-21 of June 15, 2021 remained in force through the third quarter.44 New Hampshire barred visitor access to "all assisted living facilities, long term care facilities, nursing facilities, residential care facilities" from 11:59 p.m. March 15, 2020, ordered every business outside the essential list to close its physical workplace and residents to stay home from 11:59 p.m. March 27, 2020 (Emergency Order #17), continued as Stay at Home 2.0 by Emergency Order #40 to June 15, 2020, and kept mandatory Universal Guidelines binding every business to May 7, 2021; its emergency expired June 11, 2021.45 Maine closed non-essential public-facing businesses March 24, 2020, ordered residents home April 2 to May 31, 2020, ended its caps May 24, 2021 and its emergency June 30, 2021 while scheduling the expiration of surviving orders in tranches to August 30, August 31 and September 30, 2021, and adopted on August 12, 2021 an emergency rule adding COVID-19 to the immunizations required of health care workers, including staff of intermediate care facilities.46
The Midwest
Ohio's regime was a chain of Director's Orders under R.C. 3701.13, each reciting the second-degree misdemeanor of R.C. 3701.352: the Director closed older adult day care services and senior centers and prohibited adult day support and vocational habilitation services in congregate settings on March 21 and 24, 2020, a chain the Director recited in the Stay Safe Ohio Order of April 30, 2020, which kept both categories closed "until this Order is amended or rescinded"; the Stay at Home Order of March 22, 2020 named food banks, soup kitchens and social services essential while closing every congregate day program; the Director required developmental-disability residential facilities to notify residents, guardians and sponsors of positive cases from April 15, 2020, and required residential-care testing from August 24, 2020; adult day care services and senior centers reopened from 12:01 a.m. September 21, 2020 "utilizing a phased approach ... so long as all safety standards are met"; the adult day support and vocational habilitation order was amended a second time on March 17, 2021; every one of those orders was rescinded at 12:01 a.m. June 2, 2021; the nursing-home and residential-care testing orders of May 4, 2021 ran to July 1, 2022; and in the third quarter of 2021 Cuyahoga County's Executive Order EO2021-0016 of August 3, 2021 conditioned entry to every County building, including the auto title and job and family services offices, on a face covering and a temperature screen, the exposure-control conditions the County placed on every entrant, and Columbus's Executive Order 2021-01 of September 10, 2021 required face coverings in every business open to the public, an airborne-transmission control on every workplace open to the public.47 Michigan's Executive Order 2020-7 of March 14, 2020 provided that "all health care facilities, residential care facilities, congregate care facilities, and juvenile justice facilities must prohibit from entering their facilities any visitors that: are not necessary," a prohibition continued by its successors; the stay-at-home orders ran March 24 to June 1, 2020; after the Michigan Supreme Court's decision of October 2, 2020 the Department of Health and Human Services issued its emergency orders under MCL 333.2253: the Temporary Restrictions on Entry into Congregate Care and Juvenile Justice Facilities of October 6, 2020, the Requirements for Residential Care Facilities orders of October 6 and 21 and December 8, 2020, March 2 and 17 and May 21, 2021, the testing orders, and the Gatherings and Face Mask Orders of November 15, 2020 through January 2021 that regulated soup kitchens; the general epidemic orders were rescinded June 22, 2021, the residential care facility order of May 21, 2021 remained in force through the third quarter, and 2020 PA 238 bound every employer's treatment of exposed employees.48 Illinois's Stay at Home Order of March 20, 2020, as amended March 23, named as essential "residential settings and shelters for adults, seniors, children, and/or people with developmental disabilities" and "field offices that provide and help to determine eligibility for basic needs including food, cash assistance, medical coverage, child care, vocational services, rehabilitation services," while every congregate day program closed under the stay-at-home directive; Executive Order 2020-09's telehealth provisions were re-issued monthly through the third quarter of 2021; Phase 5 ended the capacity caps on June 11, 2021; and Executive Order 2021-20 of August 26, 2021 defined "Health Care Facility" to include adult day care centers and required vaccination or weekly testing of their workers, restated by Executive Order 2021-22 of September 3 and re-issued by Executive Order 2021-23 of September 17, 2021, with the universal indoor face-covering mandate from August 30, 2021, an airborne-transmission control on every indoor workplace, and the school mask order of August 4, 2021, while the State announced on August 4, 2021 that its own employees in congregate settings, developmental centers among them, must be vaccinated by October 1, 2021, an announcement that fixed hiring and scheduling decisions inside the quarter.49 Indiana's stay-at-home order ran March 24 to May 1, 2020; Executive Order 20-19 of April 7, 2020 classed every IDD, older-adult and mental-health support worker as a health care provider for the FFCRA exclusion; Executive Order 20-48 of November 13, 2020 provided that in Red counties "[s]enior care centers activities must be cancelled or suspended" from November 15, 2020, continued by Executive Order 20-50 and its successors into 2021; and Marion County's Public Health Order 8-2020 of May 1, 2020 ordered non-congregate sheltering of the homeless, was ratified May 10, 2021 and remained in force through the third quarter of 2021.50 Iowa issued no stay-at-home order and closed by category: the Proclamation of March 17, 2020 closed every facility "that conduct[s] adult day services or other senior citizen centers," continued statewide to May 15, 2020 by the proclamation of April 27, 2020; the June 10, 2020 proclamation permitted them to reopen from June 12 "only to the extent that the establishment complies with guidance issued by the Iowa Department of Public Health," a condition carried to February 7, 2021; the April 10, 2020 proclamation granted regulatory relief including foster-care rules; and the emergency ran to February 15, 2022, with the proclamations of July 23, 2021 and its successors in force through the third quarter.51 Minnesota's Governor authorized the Commissioner of Human Services on March 20, 2020 to waive or modify the licensing and program standards for adult day services, day training and habilitation, community residential settings and child protection, an authority that ran to July 1, 2021; the stay-at-home order ran March 27 to May 17, 2020; Minneapolis closed every adult day care center, including licensed day training and habilitation centers, on March 17, 2020, imposed misdemeanor-backed conditions on every licensed congregate health-care facility from April 28, 2020 (entry limited, communal dining suspended, cohorting, staff masks, screening), and rescinded the adult day closure on July 24, 2020 on the strength of State guidance effective July 1, 2020; Executive Order 20-99 of November 18, 2020 re-tightened gatherings and residential-facility rules to January 10, 2021; and Saint Paul's emergency executive orders of August 16 and September 27, 2021 waived zoning requirements for emergency shelters.52 Kansas's Executive Order 20-14 of March 24, 2020 banned gatherings of ten or more, exempting "senior center meals" with distancing; the stay-at-home order ran March 30 to May 3, 2020; Executive Order 20-69 of December 9, 2020, effective December 14, required testing and screening at adult care homes including any "adult day care facility" not governed by 42 C.F.R. § 483.80(h), by county positivity, reissued as Executive Order 21-15 on April 1, 2021 and void June 15, 2021; and the Secretary of Health and Environment's Order Requiring COVID-19 Testing in Adult Care Homes of June 18, 2021 continued the requirement "until otherwise modified, supplemented and/or rescinded," through the third quarter of 2021.53 Missouri's Stay Home Missouri order ran April 6 to May 3, 2020 and its Phase 1 order to June 15, 2020, after which the State left every closure and face-covering rule to counties and cities; St. Louis County's Rapid Notification Order on residential facilities remained in force through 2021; and the Governor declared a staffing emergency on August 27, 2021.54 Nebraska's Directed Health Measures capped gatherings from March 19, 2020 and ran statewide to May 24, 2021, and Executive Order 21-12 of August 26, 2021 declared a hospital-capacity emergency; North Dakota's Executive Order 2020-06 closed restaurants, bars and recreational facilities from March 19, 2020, its Executive Order 2020-27 of April 10, 2020 fixed modified operating procedures for child care including congregate-meal provisions, and its Executive Order 2020-29 of April 17, 2020 suspended the statutes "necessary for the operation of the Medicaid State Plan disaster amendments, Appendix K and the provisions of the 1135 Waiver" through April 30, 2021; South Dakota issued no stay-at-home order but suspended rules for group homes on March 26, 2020, granted foster-care and licensing flexibilities on April 15, 2020, ordered vulnerable persons home to May 11, 2020, and Brookings adopted a resolution of masking recommendations on August 24, 2021 (Ex. SD-082, context, not an order); Wisconsin's Safer at Home order ran March 25 to May 13, 2020 with food banks and social services essential, Milwaukee County closed its senior centers and dining sites on March 16 and 17, 2020, the statewide face-covering order, the State's general airborne-transmission control on every indoor workplace, ended March 31, 2021, and the courts' orders ran through the third quarter of 2021.55
The South
Maryland's Governor closed every senior center from March 13, 2020, closed adult day care centers as "places of assembly" on March 16, 2020, ordered residents home from March 30 to May 15, 2020, and restated the senior-center closure in every amended gatherings order; Order 21-03-09-02 of March 9, 2021 provided that "[e]ffective at 5:00 p.m. on March 12, 2021, all adult day care centers ... may reopen," implemented by Department of Health directives that kept medical adult day care under face-covering rules, one of the exposure-control conditions of the reopening, through May 14, 2021; the general face-covering order, the airborne-transmission control on every indoor workplace, ended May 15, 2021 and the residual orders July 1, 2021; the Order of March 16, 2020 as amended and restated remained in force to August 15, 2021; and the Secretary of Health's Amended Directives Regarding Vaccination Matters required staff of State congregate facilities (August 5), hospitals and nursing homes (August 18) and certain residential facilities (September 8, 2021) to show proof of a first dose by September 1, 2021 or be tested and masked.56 Delaware's Fifth Modification ordered every individual to shelter in place from March 24 to June 1, 2020; the Twenty-Fourth Modification of July 24, 2020, effective July 27, provided that "[s]enior centers, adult day centers and senior congregate nutrition programs may reopen" at 30 percent of fire occupancy, a cap the Omnibus Modification of September 4, 2020 and its revisions carried until the Twenty-Eighth and Twenty-Ninth Modifications lifted caps at 8:00 a.m. May 21, 2021 while keeping setting-specific face coverings and the duty of every business to exclude symptomatic persons, the exposure-control requirements of the Twenty-Ninth Modification, to July 13, 2021; the Department of Health and Social Services' emergency infection-control orders for licensed agencies took effect July 1, 2021 for 120 days; a public health emergency was declared July 12, 2021; universal K-12 and child-care face coverings, one of the 2021-22 school infection-prevention controls on the settings where the workforce's children were, took effect August 15 and 16, 2021; and the Secretary's order of September 10, 2021, effective September 30, amended the adult day care regulation so that "adult day care facility staff must either provide evidence of COVID-19 vaccination, or undergo regular testing," alongside parallel orders for aide-only home health agencies and personal assistance services agencies.57 The District of Columbia's stay-at-home order ran April 1 to May 29, 2020, when Phase One kept retail to curbside and dining outdoors, and Phase Two from June 22, 2020 kept bars, theatres and venues closed and ordered continued telework; Mayor's Order 2020-075 of June 19, 2020 ordered that "[a]ll individuals residing at a facility specified in this section [assisted living, skilled nursing, ICF, CRF] are ordered to stay at their place of residence"; the general restrictions ended May 21, 2021; the indoor face-covering order, the District's airborne-transmission control on every indoor space, returned July 31, 2021; and Mayor's Order 2021-099 of August 10, 2021 required District employees, contractors and grantees to certify vaccination by September 19, 2021.58 Florida's Division of Emergency Management Order 20-006 of March 15, 2020 suspended the group-home and intermediate-care-facility statutes "for the particular purpose of prohibiting all individuals from visiting facilities," ratified May 18, made conditional September 1 and October 22, 2020 and rescinded March 22, 2021; the Agency for Health Care Administration's Emergency Rule 59AER20-7 of August 3, 2020 provided that from August 24, 2020 intermediate care facilities "shall not admit into the facility any staff who has not been tested" and must test all staff every two weeks; Executive Order 20-83 of March 24, 2020 directed seniors to stay home; Miami-Dade County closed "Congregate Meal Sites and Community Centers ... and any other facility providing meal services to the elderly pursuant to authorization by the Department of Elder Affairs" on March 16, 2020 and ordered "Adult Day Cares ... to close" from 11:59 p.m. April 3, 2020, both cancelled September 26, 2020; the State suspended local orders May 3, 2021 and voided them July 1, 2021 (Ex. FL-060; Ex. FL-059; Ex. FL-030); and Executive Order 21-175 of July 30, 2021 barred school mask mandates.59 Georgia's Executive Order 03.23.20.01 banned gatherings over ten and ordered shelter in place for the medically fragile from March 24, 2020, the statewide shelter-in-place ran April 3 to 30, 2020, and Executive Order 04.23.20.02, as extended by Executive Order 04.30.20.01, continued shelter in place for persons sixty-five and older and residents of long-term care facilities to June 12, 2020; the Empowering a Healthy Georgia orders carried the gathering ban and sector protocols to April 7, 2021 and the public health emergency expired July 1, 2021; the Governor's Executive Order 06.30.21.01 and its renewals, and Executive Order 08.19.21.03, ran through the third quarter, and Savannah's Emergency Order No. 29 of August 24, 2021 closed City community centers and barred groups over fifty on City property.60 Kentucky's Cabinet for Health and Family Services ordered on March 17, 2020 that by 5:00 p.m. March 18 "all public-facing businesses that encourage public congregation" including "community and recreation centers" "shall cease all in-person operations," banned mass gatherings March 19, and the Governor ordered residents Healthy at Home from March 26, 2020; phased reopening began May 11, 2020; House Bill 1 of February 2, 2021 fixed reopening rules including foster-care provisions; every Cabinet order was rescinded June 11, 2021; and Executive Order 2021-585 of August 10, 2021 required masks in every school and child-care program, one of the 2021-22 school and child-care infection-prevention controls (masking, testing and quarantine) on the settings where the workforce's children were, until the General Assembly's special session terminated it, by House Joint Resolution 1 of September 7, 2021 and Senate Bill 1 of September 9, 2021 vesting school masking in local boards.61 Louisiana's State Health Officer issued Order #2020-COVID-ADC/ADHC/PACE-001 for adult day care, adult day health care and PACE centers on March 13, 2020, re-issued it April 7 and 28, and on May 15, 2020 continued it "until further notice from the State Health Officer"; the stay-at-home proclamation ran March 23 to May 15, 2020; the State Health Officer ordered on September 18, 2020 that all nursing facilities, adult residential care providers "and all Intermediate Care Facilities for Persons with Developmental Disabilities (ICF/DDs) are mandated and directed to follow the provisions of ... QSO-20-39-NH"; the general orders ended May 26, 2021; and Proclamation 137 JBE 2021 imposed a statewide indoor face-covering mandate, an airborne-transmission control on every indoor workplace, from August 4, 2021, renewed through the quarter.62 North Carolina's Executive Order 120 of March 23, 2020 banned gatherings over 50, closed community centers and restricted visitation at "skilled nursing facilities, adult care homes, family care homes, mental health group homes, and intermediate care facilities for individuals with intellectual disabilities" to compassionate care; Executive Order 121 ordered residents home from March 30 to May 8, 2020 with food banks and social services essential; Executive Order 215 lifted general caps on May 14, 2021 but kept face coverings, the airborne-transmission control the State retained for the settings it continued to regulate, in schools, health care, transportation, corrections and shelters, re-issued by Executive Order 220 through July 30, 2021; Executive Order 224 of July 29, 2021 required masking and vaccination or testing of Cabinet-agency employees; and Mecklenburg County's abatement order of February 16, 2021 governed an encampment.63 Tennessee's Executive Order 22 ordered residents home from March 31 to April 30, 2020 with food banks and social services essential; Executive Order 30 of April 28, 2020 listed "Senior centers" among the facilities to remain closed in the eighty-nine counties under State authority, continued by Executive Orders 38 and 49; Executive Order 63 of September 29, 2020 provided that "[s]enior centers or equivalent facilities may be open ... beginning October 1, 2020; provided, that capacity must be limited to the extent necessary to accommodate adequate social distancing"; the general orders ended April 28, 2021; and Executive Order 83 of August 6, 2021 declared a health-care staffing emergency through the quarter.64 Texas's GA-08 of March 19, 2020 banned gatherings over ten, closed schools and barred nursing-home visits; GA-14 ordered every person to minimize social gatherings and in-person contact from April 2 to 30, 2020 under the CISA essential-services list; Austin's order of March 21, 2020 exempted homeless shelters from its gathering ban; the statewide occupancy orders ended March 10, 2021; the Texas Supreme Court's emergency orders governed every court through the quarter; and GA-38 of July 29, 2021 barred local mask and vaccination mandates while the disaster declaration continued.65 Virginia's Executive Order 53 of March 23, 2020 closed recreation businesses and banned gatherings over ten from 11:59 p.m. March 24 to May 14, 2020, Executive Order 55 ordered residents home from March 30 to June 10, 2020 with "essential social services" a permitted purpose, Fairfax County closed "all senior center and adult day health care" facilities from March 16, 2020, the general orders ended May 28, 2021, and in the third quarter the Department of Labor and Industry's permanent workplace infection-prevention and exposure-control standard bound every employer, amended September 8, 2021, the State Health Commissioner required masks in every K-12 school from August 12, 2021, one of the 2021-22 school and child-care infection-prevention controls (masking, testing and quarantine) on the settings where the workforce's children were, and Executive Directive 18 required vaccination or testing of State employees from September 1, 2021.66 Alabama's State Health Officer closed senior centers from March 20, 2020 with schools, child care and beaches and banned gatherings of 25 or more; the stay-at-home order ran April 4 to 30, 2020; the Emergency Order of April 16, 2020 required that every government or private nonprofit temporary shelter "shall provide the temporary shelter and necessary wrap-around services using non-congregate solutions"; the 2021 Safer at Home orders provided that "senior centers shall follow guidelines issued by the Alabama Department of Senior Services" to May 31, 2021; the emergency ended July 6, 2021 and a new emergency was proclaimed August 13, 2021.67 Arkansas, Mississippi, Oklahoma, South Carolina and West Virginia closed the industry's congregate functions by category under their gathering, closure and stay-at-home instruments of March and April 2020, kept face-covering rules, the airborne-transmission control on every indoor workplace, or gathering rules into the first quarter of 2021, and in the third quarter of 2021 operated under the federal layer, their courts' orders and, in Arkansas (Ex. AR-017, July 29, 2021), Mississippi (emergency to November 20, 2021) and West Virginia (Ex. WV-001; Ex. WV-067, Executive Order 23-21, issued July 20, 2021 with operative effect October 1, 2021 and cited for its recital that Executive Order 7-20 and the emergency continued through the quarter), continuing or renewed emergencies; South Carolina's Executive Order 2021-19 of April 12, 2021 (Ex. SC-034) directed the Department of Social Services on placements of unaccompanied migrant children in licensed residential group care and foster facilities during the second quarter of 2021.68
The West
California's Executive Order N-33-20 and the State Public Health Officer's order of March 19, 2020 ordered every resident to stay home and closed congregate day programs as non-essential until June 15, 2021; the Department of Social Services' Community Care Licensing Division issued PIN 20-08-ASC on March 18, 2020, limiting entry to adult and senior care facilities to "individuals who need entry" and waiving staffing ratios and background-check timing, PIN 20-23-ASC on June 26, 2020, fixing testing, visitation, communal dining and face coverings, PIN 20-33-ASC on September 30, 2020, the Adult Day Programs COVID-19 Guidelines, with initial reopening capacity of "no more than 50%" and screening at entry, PIN 21-33-ASC on July 27, 2021, applying the State Public Health Officer's order of July 26, 2021 to adult day programs with full compliance by August 23, 2021, and PIN 21-44-ASC on September 28, 2021, transmitting the State Public Health Officer's vaccination requirement for every adult and senior care facility worker; the State Public Health Officer named adult day health centers and homeless shelters among the settings whose workers were to verify vaccination and, if unvaccinated, test weekly from August 9, 2021, required health care workers including those at intermediate care and adult day health facilities to be vaccinated by September 30, 2021, and, through the Department of Public Health, required face coverings in emergency shelters and adult day programs from July 28, 2021, an airborne-transmission control placed on those settings alongside the July 26 verification-and-testing order; Los Angeles County's Health Officer ordered vaccination of health care and home care workers by September 30, 2021 and kept its licensed congregate health care facilities order of April 24, 2020 in force; the seven Bay Area jurisdictions had issued the nation's first shelter-in-place orders on March 16, 2020; and Marin County required shelter and public-sector employers to verify vaccination and test unvaccinated personnel weekly from August 20, 2021.69 Colorado's Public Health Order 20-20 restricted visitors at skilled nursing facilities, assisted living residences and intermediate care facilities from March 12, 2020; the stay-at-home order ran March 26 to April 26, 2020; the Seventh Amended Public Health Order 20-20 of June 1, 2021 required surveillance and outbreak testing at "skilled nursing facilities, assisted living residences, intermediate care facilities, and group homes," superseded by the Eighth Amended order of September 27, 2021; Public Health Order 20-38, amended seven times through September 30, 2021, imposed as an exposure-control requirement on homeless shelters and health care settings the masking of unvaccinated persons and provided that "All employers must implement the face covering requirements," in its Fourth Amended form from July 1, its Fifth from August 1 and its Sixth from September 1, 2021; the Board of Health required a first dose by September 30, 2021 of every employee of a licensed health facility by emergency rule of August 30, 2021; Denver ordered non-congregate sheltering on March 21, 2020 and, on August 2, 2021, required vaccination of the personnel of "shelters for people experiencing homelessness, including day and overnight shelters" by September 30, 2021; and Boulder County kept face coverings in congregate care, an airborne-transmission control on those settings, to June 10, 2021.70 New Mexico's order of March 23, 2020 directed every business outside the essential list to reduce its in-person workforce by 100 percent and every essential operation to minimize its staff, with gatherings of five prohibited; the county framework ran to June 30, 2021; the order of June 30, 2021, effective July 1, kept mandatory COVID-Safe Practices for "all businesses, establishments, and non-profit entities," with masks for the unvaccinated among those workplace infection-prevention requirements, under a $5,000 penalty; the order of August 17, 2021 required every "congregate care facility worker" to be fully vaccinated, defining congregate care facilities to include nursing homes, assisted living, "adult day care," hospice, rehabilitation, residential treatment centers and community homes, amended September 15, 2021; the universal indoor face-covering mandate, an airborne-transmission control on every indoor workplace, returned August 20, 2021; and State employees were under vaccinate-or-test from August 2, 2021.71 Washington's Proclamation 20-25 ordered all people to cease leaving home and every business outside the essential list to cease operations from March 25, 2020; Proclamation 20-66 of August 7, 2020 provided that the operations of "certified community residential services and support," adult family homes, assisted living facilities and "nursing homes and intermediate care facilities for individuals with intellectual disabilities ... must comply with the guidance documents ... and ... operations within such facilities that are not consistent with the guidance documents are prohibited," extended through the termination of the emergency; King County's Local Health Officer ordered non-congregate isolation and recovery facilities and homelessness de-intensification on May 20, 2020 and emergency food procurement on May 29, 2020 because food banks "have reported a surge in need," orders that expired only on the Health Officer's determination; Everett's stay-home directive named food banks; the Secretary of Health's Order 20-03.2 of May 15, 2021 kept face coverings in homeless shelters, an airborne-transmission control on those settings; the caps ended June 30, 2021 under Proclamation 20-25.13, and Proclamation 20-25.14, Washington Ready, of July 1, 2021 kept the exposure-control requirements of face coverings in listed settings and employer verification of vaccination before unmasked work; Proclamations 21-14 and 21-14.1 of August 9 and 20, 2021 required every health care provider, long-term care worker, State worker and K-12, child-care and college worker to be vaccinated by October 18, 2021; Order 20-03.4 imposed face coverings on every person indoors from August 23, 2021, an airborne-transmission control on every indoor workplace; and King County's Health Officer issued face-covering directives, airborne-transmission controls on every indoor space in the county, on May 20 and September 2, 2021.72 Oregon's stay-home order of March 23, 2020, its county tier framework to June 30, 2021, OAR 333-019-1010 of August 5, 2021 (vaccination or weekly testing of health care providers and staff, reaching adult foster homes and residential care), its replacement of August 25, 2021 (vaccination by October 18), OAR 333-019-1025 of August 11, 2021 (indoor face coverings) and Oregon OSHA's renewed occupational face-covering rule of August 13, 2021, an occupational-health and airborne-transmission control on every Oregon workplace, fixed the Oregon regime.73 Arizona's stay-at-home order ran March 31 to May 15, 2020; Executive Order 2020-22 of April 7, 2020 required nursing care institutions, intermediate care facilities and group homes to "immediately ensure" federal infection-control practices, symptom checks of every entrant, fourteen-day isolation of positive and unknown admissions and cohorting with separate staffing, rescinded April 1, 2021; its Executive Order 2020-09 exempted soup kitchens from the dine-in closure; Mesa's proclamation of March 19, 2020 reached food banks; and Executive Order 2021-09 of April 19, 2021 barred State and local vaccine-status conditions "unless proof of vaccination is currently a requirement" under federal law, preserving the federal intermediate-care-facility conditions, to September 29, 2021.74 Nevada's Directive 003 closed non-essential businesses from March 20, 2020 and Directive 010 ordered residents home from April 1 to May 15, 2020; its general regime ended June 1, 2021; and Directive 047 of July 27, 2021 required face coverings indoors in substantial- and high-transmission counties from July 30, 2021, an airborne-transmission control on every indoor workplace in those counties.75 Utah's Stay Safe, Stay Home directive ran March 27 to May 1, 2020; Summit County closed its senior centers on March 12, 2020 and Salt Lake County on March 13, 2020; House Bill 294 ended the statewide face-covering order, the State's airborne-transmission control on every indoor workplace, April 10, 2021 and the remaining orders May 4, 2021.76 Hawaii's proclamation of March 23, 2020 ordered all persons to stay home from March 25 to May 31, 2020; Safe Travels conditioned every arriving passenger; the emergency proclamation of August 5, 2021 and Executive Order 21-05 of August 10, 2021 reimposed gathering caps of ten indoors and twenty-five outdoors; and nothing in the general regime ended before September 30, 2021.77 Idaho's Order to Self-Isolate ran March 25 to April 30, 2020, its proclamation of March 23, 2020 suspended more than 125 administrative rules including developmental-disability agency and family-services rules "for the duration of the declared state of emergency," its Stage 2 orders ran November 13, 2020 to February 2, 2021, its long-term care visitation guidelines including intermediate care facilities governed under the Stage 4 Stay Healthy Guidelines of May 11, 2021, which remained in force through the third quarter.78 Montana's Stay at Home Directive ran March 28 to April 26, 2020; its Directive of May 7, 2020 fixed measures to maintain health and safety in foster and congregate care (name-based background checks; training, staffing and premises waivers for quarantine and isolation), continued to June 30, 2021; Yellowstone County restricted visitors to senior care facilities including group homes from July 3, 2020; and House Bill 702 exempted licensed facilities including intermediate care facilities from its bar on vaccination-status conditions, as the Department of Public Health and Human Services' letter of July 28, 2021 recorded (context).79 Alaska's Health Mandate 003 of March 17 and Mandate 011 of March 28, 2020 closed congregate operations to April 24, 2020; Health Mandate 014 of April 13, 2020 ordered non-congregate sheltering in hotels, dormitories and modified structures for "homeless families" and others needing isolation or quarantine, expired November 15, 2020 and continued as Outbreak Health Order No. 4 to February 14, 2021; and the Commissioner's public health emergency order of April 30, 2021 ran through the third quarter.80 Wyoming's Statewide Public Health Order #1 of March 19, 2020 closed listed places of public accommodation and ran without interruption, in progressively modified form, through May 31, 2021; its general business restrictions ended March 16, 2021 under the Twenty-third Continuations, leaving the school, child-care and 500-person event rules to May 31, 2021; House Enrolled Act 93, effective July 1, 2021, and the continuing Executive Order 2020-2 governed the third quarter.81
The winter re-tightening and the 2021 transition
Every region re-tightened between October 2020 and January 2021, and the instruments that did so reached this industry in terms: Indiana's Red-county cancellation of senior-center activities from November 15, 2020; Michigan's congregate-care entry restrictions of October 6, 2020 and its gathering orders regulating soup kitchens from November 18, 2020; Kansas's adult day care testing order of December 14, 2020; New Jersey's standing testing order for developmental-disability settings of December 2, 2020; Minnesota's Executive Order 20-99 of November 18, 2020; Colorado's Level Red from November 20, 2020, in which personal gatherings were prohibited and offices ran at 10 percent; California's Regional Stay at Home Order of December 3, 2020; New Mexico's reset of November 16, 2020 and its Red-to-Green framework; Ohio's curfew of November 19, 2020 to February 11, 2021; and the closing hours, capacity cuts and gathering limits of ten across the Northeast and South.82 The general restrictions then ended State by State between April 2020 and July 1, 2021: South Dakota April 28, 2020; Alaska May 22, 2020; North Dakota May 22, 2020; Kansas May 26, 2020; Wisconsin May 13, 2020; Missouri June 15, 2020; Iowa's percentages June 12, 2020 and its mandates February 7, 2021; Florida's State business restrictions September 25, 2020; Tennessee September 30, 2020 and its emergency orders April 28, 2021; Idaho February 2, 2021; Montana February 12, 2021; Arkansas February 26, 2021; Mississippi March 3 and South Carolina March 5, 2021; Texas March 10, 2021; Oklahoma March 12, 2021; Wyoming March 16, 2021; Arizona March 25, 2021; Indiana April 6, 2021; Georgia April 8, 2021; Alabama April 9 and May 31, 2021; Utah, West Virginia and Colorado April 2021; North Carolina May 14, New Hampshire May 7, Maryland May 15, Connecticut May 20, Delaware, the District and Rhode Island May 21, Maine May 24, Nebraska May 24, Louisiana May 26, Minnesota May 27, New Jersey and Virginia May 28, Massachusetts May 29 and Pennsylvania May 31, 2021; Nevada June 1, Ohio June 2, Kentucky and Illinois June 11, Vermont June 14, Michigan June 22 and New York June 25, 2021; and California June 15, Oregon and Washington June 30 and New Mexico July 1, 2021, with Hawaii never in the period.83 In every State the ending instrument kept named instruments alive, and in this industry what remained was never the general layer: it was the residential visitation and testing orders, the licensing conditions on which adult day programs had reopened, the shelter and congregate-setting infection-prevention and exposure-control rules, face coverings among them, Appendix K and the federal conditions of participation.
The preemption States
Where a State barred stricter local orders (Arizona from March 2020; Florida from April 2020 and by statute from July 1, 2021; Georgia from April 3, 2020; South Carolina, Tennessee in its eighty-nine counties, Texas from April 2020 and as to face coverings from March 10, 2021; New Jersey, New York and Connecticut in the Northeast; and Montana, Utah and Wyoming by 2021 statute), the preemption clause was the State's assertion of exclusive authority over the field, and it left in force the State's own instruments, the court orders, the federal layer and Appendix K, which carried the industry's quarters in those States.84 Maryland and Delaware, by contrast, affirmatively authorized stricter county orders.85
D. The largest metros
The local instruments
The metropolitan instruments that reached this industry did four things: they closed senior centers and adult day care by name where the State had not; they ordered non-congregate sheltering and requisitioned hotel rooms; they imposed conditions on congregate health-care facilities including group homes; and, in the third quarter of 2021, they conditioned the employment of shelter and congregate-setting staff on vaccination or testing and re-imposed airborne-transmission controls, face coverings first among them, in congregate settings. Nassau County, in the New York metropolitan area, closed every county-operated senior center on March 13, 2020 "until further notice" and kept them closed on October 2, 2020.86 Fairfax County, in the Washington suburbs, closed its senior center and adult day health care facilities from March 16, 2020, and the suburbs' Phase One order of June 1, 2020 kept senior centers closed.87 Summit County, Utah closed its senior centers on March 12, 2020 and Salt Lake County, in the Salt Lake City area, on March 13; Milwaukee County, in the Milwaukee and Madison area, closed its senior centers and made its dining sites carry-out on March 16 and 17, 2020 (as the County's own page records, Ex. MET-MKE-053, cited as context; Wisconsin's Safer at Home order, Ex. WI-002, closed them by order from March 25); Louisville closed its community centers on March 14, 2020, and Lexington its senior centers from March 13, 2020, reopening them only in June 2021 (the cities' releases, Ex. MET-SDF-026 and Ex. MET-SDF-035, are their own record of the closures and are cited as context; the Cabinet's statewide order of March 17, 2020, Ex. KY-004, is the order); Lexington, in the Louisville and Lexington area, shuttered its community centers on March 16, 2020 by the Mayor's directives (Ex. MET-SDF-020); and Orlando closed its community centers on March 20, 2020.88 Miami-Dade closed congregate meal sites and community centers on March 16 and adult day care from April 3, 2020, both to September 26, 2020, the City of Miami's emergency measures reached food banks, and Pinellas County's Safer at Home order of March 25, 2020, in the Tampa Bay area, carried social-services provisions.89 Minneapolis closed every adult day care center on March 17, 2020 and imposed misdemeanor-backed conditions on every licensed congregate health-care facility from April 28, 2020, both to July 24, 2020.90 Denver ordered non-congregate sheltering on March 21, 2020; King County, in the Seattle area, ordered isolation, quarantine and recovery facilities and homelessness de-intensification on May 20, 2020 and emergency food procurement on May 29, 2020; Marion County, in the Indianapolis area, ordered non-congregate sheltering on May 1, 2020 and ratified it May 10, 2021; Alaska and Alabama did the same by State order in April 2020; San Diego kept its Convention Center as an emergency shelter from April 2020; Austin exempted homeless shelters from its gathering ban on March 21, 2020; St. Louis County's Rapid Notification Order on residential facilities, in the St. Louis area, remained in force in 2021; and Saint Paul waived zoning requirements for emergency shelters through September 2021.91 Los Angeles County's Health Officer ordered on April 24, 2020 that licensed congregate health care facilities admit no visitors, suspend communal dining, mask staff and cohort residents, an order in force to 2023 except as to skilled nursing facilities, and on August 12, 2021 required vaccination of health care and home care workers by September 30, 2021; the Bay Area health officers' shelter-in-place orders of March 16, 2020 were the first in the nation, and Marin County's order of August 20, 2021 required shelter and public-sector employers to verify vaccination and test weekly.92 Chicago's Phase 5 order of June 11, 2021 kept its workplace infection-prevention requirements on congregate facilities, health care and transit, masks mandatory and screening every shift, and Cook County's order of August 20, 2021 re-imposed face coverings countywide, an airborne-transmission control on every indoor workplace in the County.93 New York City's Commissioner of Health ordered vaccination or testing of the staff of its public hospitals by August 2 and, from August 16, 2021, of "each staff member or contractor working at a residential or a congregate setting" of the homeless-services, human-resources and health agencies, reaching the not-for-profit shelter and supportive-housing operators, while the Key to NYC orders of August 16 and 25, 2021 exempted senior centers and community centers by name.94 Denver's Public Health Order of August 2, 2021 required vaccination by September 30, 2021 of the personnel of "shelters for people experiencing homelessness, including day and overnight shelters," and Boulder County kept face coverings in congregate care, an airborne-transmission control on those settings, to June 10, 2021.95 Philadelphia's Board of Health adopted the health care worker vaccination regulation effective August 16, 2021, and its Full Reopening Order of June 15, 2021 kept face coverings in congregate settings, an airborne-transmission control on those settings; Cuyahoga County's Executive Order EO2021-0016 of August 3, 2021, in the Cleveland area, conditioned entry to every County building, including the auto title and job and family services offices, on a face covering and a temperature screen, the exposure-control conditions the County placed on every entrant, and Columbus's Executive Order 2021-01 of September 10, 2021 required face coverings in every business open to the public, an airborne-transmission control on every workplace open to the public; Savannah's Emergency Order No. 29 of August 24, 2021 closed City community centers and barred groups over fifty on City property; Mecklenburg County's abatement order of February 16, 2021, in the Charlotte area, governed an encampment; Mesa's proclamation of March 19, 2020, in the Phoenix area, reached food banks; Camden County declared its emergency on March 16, 2020; and the Sixteenth Judicial Circuit in Kansas City suspended its proceedings from March 22, 2020.96 The metro table on this page tabulates the rows.
E. The sector regulators
The federal regulators
Three federal regulators fixed the conditions of this industry's revenue functions in every State: CMS, through the ICF/IID conditions of participation (QSO-20-23, QSO-21-14, the section 1135 waivers and 42 C.F.R. § 483.460(a)(4)) and through its approval of every State's Appendix K; HUD, through the March 31, 2020 waiver memorandum, Notice CPD-20-08 and Notice CPD-21-08; and OSHA, through the Healthcare Emergency Temporary Standard of June 21, 2021 and its inspection directive.97 The Department of Agriculture's Food and Nutrition Service issued nationwide child-nutrition waivers used in the 2020-21 and 2021-22 school years and administered emergency SNAP allotments and Pandemic EBT, which redirected the demand on food banks and the meal contracts of family-services agencies; the Administration for Children and Families issued the Head Start designation-renewal interim final rule of December 7, 2020 and the child-care stabilization-grant conditions of May 10, 2021 that reached the family-services agencies operating Head Start and child-care programs; and the Substance Abuse and Mental Health Services Administration's take-home and doorstep-delivery exceptions of March 2020 governed the opioid treatment programs that are counterparties of every counseling agency.98
The State licensing agencies
The State instruments specific to this industry were licensing and health-department orders: California's Provider Information Notices 20-08-ASC, 20-23-ASC, 20-33-ASC, 21-33-ASC and 21-44-ASC; Louisiana's State Health Officer orders on adult day care, adult day health care and PACE centers and on intermediate care facilities; New Jersey's Executive Directives 20-022, 20-034, 21-006 and 21-007; Ohio's Director's Orders on adult day support, vocational habilitation, adult day care, senior centers and developmental-disability residential facilities; Maryland's Department of Health directives on medical adult day care and on State congregate facilities; Kansas's Executive Orders 20-69 and 21-15 and the Secretary's order of June 18, 2021 on adult day care facilities; Michigan's congregate care and residential care orders; Florida's AHCA emergency rule on intermediate care facilities; Colorado's Public Health Orders 20-20 and 20-38 and its Board of Health rule; Delaware's emergency orders amending the adult day care regulation; Rhode Island's 216-RICR-20-15-8; Massachusetts's Public Health Emergency Orders and 105 CMR 159.000; New York's 10 NYCRR 2.60, 2.61 and Subpart 66-4; Washington's Proclamation 20-66; Idaho's rule suspensions; Montana's congregate-care directive; Minnesota's Executive Order 20-12; North Dakota's Executive Order 2020-29; and Arizona's Executive Order 2020-22.99 Each was an order of an authority with statutory power over the licensed operation it conditioned, each carried a licensure, civil or criminal sanction, and each is cited with its exhibit identifier in the six-quarters section.
F. The counterparties
The orders on counterparties
The industry's counterparties were themselves ordered closed, converted or conditioned, and each such order limited the commerce this industry transacts with them. Hospitals and skilled nursing facilities, the discharge and referral sources of adult day and residential programs, suspended elective procedures, barred visitors and tested staff by federal and State order in every quarter.100 Schools and child-care programs, the co-located partners of youth and Head Start programs and the places of care of the workforce's children, were closed by order in every State for the spring of 2020, remote or hybrid under mandatory frameworks for the 2020-21 year, and masked, tested and quarantined by order in the 2021-22 year.101 Courts, the venue of every dependency, guardianship and protective proceeding of a family-services agency, suspended in-person proceedings from March 2020 and kept remote presumptions, masking and testing conditions through the third quarter of 2021.102 The Social Security Administration and the Department of Veterans Affairs closed their field and regional offices to the public from March 17 and 19, 2020, the former to April 7, 2022, and county benefits offices went remote under the State telework orders, which is the fact in which every benefits-enrollment function of this industry operated.103 Landlords and hotels, the counterparties of every rapid re-housing and non-congregate sheltering program, operated under the federal, State and local eviction moratoria and the non-congregate sheltering orders that requisitioned or contracted their rooms.104 Manufacturers and federal facilities, the customers of every sheltered workshop and AbilityOne contract, were closed or conditioned by the non-essential manufacturing orders of 2020 and the federal telework, occupancy and contractor rules of 2020 and 2021.105 Grocers, food manufacturers and the Department of Agriculture, the suppliers of every food bank, operated under retail closures and occupancy caps, the meat and poultry plant order of April 28, 2020 and the commodity and waiver rules.106 Transit agencies and carriers, on which the workforce and the participants move, ran reduced schedules under emergency orders in 2020 and enforced the federal conveyance order and the TSA directives from February 1, 2021 through the quarter.107 Congregations and community centers, the site hosts of senior meals and pantries, were closed or capped by the gathering and worship orders of every State.108 Volunteers and donors, the unpaid workforce of the food and meal functions, were confined by the stay-at-home orders for persons over sixty-five and by the gathering caps.109
G. The ecosystem
The mechanisms
The interconnected-economy section states the mechanisms in full. In summary: the federal allocation orders, the scarce-materials designation and the export rule of March and April 2020 fixed the supply of personal protective equipment on which every group home, day center and shelter depended; the entry proclamations, the land-border prohibitions and the inbound-testing order limited commerce and travel with every foreign supplier and every cross-border worker through November 8, 2021; the school and child-care closures of every State, the leave mandates of April to December 2020, the quarantine and isolation orders on exposed persons, the transit orders and the vaccination mandates of July to September 2021 governed the workforce; the court, clerk and benefits-office closures suspended the transactions of the family-services function; the health-care orders fixed the discharges, referrals and testing on which the residential and adult day functions depend; and the manufacturing closures of Michigan, Pennsylvania, New York, New Jersey and Ohio and the federal workplace rules removed the customers of the sheltered-work function.110 The gatherings of the industry itself, its congregate programs, the conferences of its associations, its fundraising events and the meetings that plan, staff and fund it, with the venue orders under which each was cancelled, moved online or held under conditions in 2020 and 2021, are recorded in the Library's group-meetings records. Foreign governments' orders (Canada's discretionary-entry bar on United States residents to August 9, 2021; China's entry suspension; Mexico's semaforo; the European Union's list) are treated as the facts and circumstances in which the United States' entry, border and supply instruments operated, not as orders of an appropriate governmental authority.111
H. The standing duties
Beneath the seven layers lay an eighth that bound every adult day center, group home, day program, work center, pantry and shelter throughout the six quarters: the standing statutes that commanded every person to prevent and control communicable disease and every employer to furnish a safe and healthful workplace, the offenses for disobeying health and emergency orders, and the liability shields of 2020 and 2021 that protected only a complying business.112 Each is an order from an appropriate governmental authority, because a statute or rule that commands conduct is an order and a legislature, a health department and a labor department are each such an authority. Three sources of law commanded the screening, distancing, cohorting, sanitation, face coverings and exclusion of exposed staff that the Service calls measures beyond the orders, stated here for eight States in which the industry's closures ran longest or its regulatory record is fullest: California, Texas, New York, Ohio, New Jersey, Florida, Iowa and Virginia. The fifty-one-jurisdiction table is on the standing-duties page.
The orders' own conditions of operating
First, the reopening orders let this industry operate only on conditions, and the verbs are commands. Iowa let adult day services and senior centers reopen from June 12, 2020 "only to the extent that the establishment complies with guidance issued by the Iowa Department of Public Health," until the proclamation of February 5, 2021 converted the condition to "I strongly encourage," a recommendation recorded as one; Ohio's Director reopened adult day care services and senior centers "so long as all safety standards are met"; California's licensing agency told every adult day program that "Providers must be in full compliance with this PIN by August 23, 2021"; New Jersey reopened adult day health services facilities only under the protocols of Executive Directive 21-007; Texas's GA-28 commanded that "Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy of the establishment" until GA-34 made the State's protocols "strongly encouraged" from March 10, 2021; and Virginia's Executive Order 61 let each sector reopen "provided such businesses comply with the Guidelines for All Business Sectors," guidelines made commands only by that incorporation.113 After a conversion the compulsion rests on the standing statutes, the shield's condition and the federal layer.
The standing statutes
Second, standing law commanded the same conduct independently, under penalty. Texas states the duty on every 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.) Refusing its control measures is a Class B misdemeanor, and Labor Code § 411.103 commands that "Each employer shall" provide "a place of employment that is reasonably safe and healthful for employees" and "take all other actions reasonably necessary to make the employment and place of employment safe."114 Ohio makes violation of a Director's pandemic order a second-degree misdemeanor, provides in R.C. 3701.81(C) that no person having charge of a "place of public accommodation, amusement, resort, or trade" "shall negligently fail to take reasonable measures to protect the public from exposure to the contagion," and commands every employer to furnish a place of employment "safe for the employees therein and for frequenters thereof."115 New Jersey commands that "Any person who is responsible for the care, custody, or control of a person who is ill or infected with a communicable disease shall take all measures necessary to prevent transmission of the disease to other persons."116 New York punishes violation of any lawful health order by civil penalty or, if willful, as a misdemeanor, and Labor Law § 200 commands "reasonable and adequate protection to the lives, health and safety of all persons employed therein."117 California, Florida, Iowa and Virginia punish violation of a health or emergency order as a misdemeanor; California, Iowa and Virginia command by statute a workplace "safe and healthful" or "free from recognized hazards," and Florida, with no State general-duty statute, left its private employers to the federal clause alone.118 That clause bound every private employer here: "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," enforced by citation from September 10, 2020 and particularized by the Healthcare Emergency Temporary Standard from June 21, 2021; and Virginia, California, New York, New Jersey and Iowa wrote the pandemic duty into workplace rules of their own.119
The liability shields' condition
Third, the legislatures that shielded businesses from COVID-19 suits conditioned protection on compliance with governmental standards, and thereby declared compliance the standard of care. Texas protects a business unless the claimant proves that it "knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols"; Florida immunizes only a defendant that "made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance"; and Iowa bars liability only where the act "was in substantial compliance or was consistent with any federal or state statute, regulation, order, or public health guidance related to COVID-19."120 Ohio's Am. Sub. H.B. 606 set a culpability floor instead and provided that "A government order, recommendation, or guideline shall neither create nor be construed as creating a duty of care upon any person"; Ohio's compulsion lay in R.C. 3701.352, 3701.81(C) and 4101.11.121 California enacted no shield, so Evidence Code § 669 presumed a failure of due care from the violation of any statute, ordinance or regulation; New York and New Jersey shielded health care providers only, leaving every other employer to the ordinary standard of care, which the orders and the safety statutes defined. Virginia's one statute reached hospices, home care organizations, assisted living facilities, adult day care centers and the private providers licensed by its Department of Behavioral Health and Developmental Services, and protected them only "In the absence of gross negligence or willful misconduct" and only where a lack of resources attributable to the disaster left the provider unable to give the level of care otherwise required, for causes of action arising between March 12, 2020 and June 30, 2021, the life of the Executive Order 51 emergency; it set no compliance condition, and Virginia's compulsion lay in the conditions of Executive Orders 61 and 67, Virginia Code §§ 32.1-27 and 40.1-51.1(A) and 16VAC25-220.122 In each of the eight States an adult day center that screened at its door, a group home that cohorted its residents and a pantry that masked its volunteers did what a statute, an order or the condition of its own legal protection required. That is compliance, and the Suspension Clause asks nothing more.