Dental Practices

The Interconnected Economy and the Broken Leg

A dental practice sells a service that cannot be delivered at a distance, to patients who must travel to it, by a workforce that must travel to it, with prostheses fabricated elsewhere and respirators allocated by the federal government, under licenses issued by boards whose offices closed, in a sedation setting shared with hospitals whose operating rooms were ordered shut. An order on any of those is an order limiting commerce, travel or group meetings, and an operation of this industry delayed, interrupted or terminated because of it is suspended due to it. The orders of the spring of 2020 compelled this industry to dismantle its schedule, its staff and its inventory; the orders' own reopening conditions throttled the rebuilding of each through the second quarter of 2021; and the clause's grammar, Tri-State's definition and the Notice's own words make the continuing suspension a suspension "during the calendar quarter."

The mechanisms

Six mechanisms carried orders addressed to others into this industry's operation. Supply chain and borders: FEMA's allocation rule designated the industry's respirators, masks and gloves as scarce materials, barred their export and allocated them from April 7, 2020 to June 30, 2021; the FDA's authorizations and revocations fixed which respirators could lawfully be used; the land-border restrictions and entry proclamations closed the cross-border movement of the patients of the border practices of Texas, Arizona, California, Michigan, New York and Washington and of the foreign-trained hygienists and laboratory technicians the industry recruits.²⁷⁶ Workforce, schools and child care: the school-closure orders of the spring of 2020, the FFCRA mandate through December 31, 2020, the State paid-leave mandates through September 30, 2021 and the quarantine orders removed the industry's hygienists, assistants and front-desk staff, a workforce overwhelmingly women, from its operatories by law.²⁷⁷ Travel and gatherings: the interstate quarantines and the gathering limits of every State ended the continuing-education, study-club and convention calendar through which the industry credentials its staff and buys its equipment (the meetings records on this page), and confined the patients who travel across State lines to the practices of the border metros.²⁷⁸ Courts and public offices: the licensing boards' offices, examinations and renewal counters closed or moved to waiver regimes in every State; the recorders' offices through which practice acquisitions close did the same.²⁷⁹ Transit: the CDC conveyance order and the TSA directives conditioned every commute from February 1, 2021, and the transit agencies' rules did so from the spring of 2020.²⁸⁰ Health care as counterparty: the elective-procedure orders on hospitals and ambulatory surgery centers closed the operating rooms in which oral and maxillofacial surgeons and pediatric dentists treat sedation cases in the spring of 2020 and again in the winter, and the health-care-worker vaccination orders of California, New York, Maryland, Massachusetts and New York City conditioned the industry's hospital-based work from July 26, 2021.²⁸¹

Counterparty orders as orders

The statute's object is "commerce, travel, or group meetings," not the employer's premises. The Notice's Q&A-12 applies the clause exactly so, making an employer eligible "because its operations have been suspended due to the governmental order that suspended operations of its supplier," and the United States told the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party."²⁸² The supplier of a general dentist is the laboratory that fabricates the crown and the distributor whose respirators the federal government allocated; the supplier of an oral surgeon is the hospital operating room; the supplier of an orthodontist is the aligner manufacturer and the school whose calendar fixes the adolescent patient's appointments; the supplier of every practice is the board that licenses its hygienists. Each was closed or conditioned by order, and the operations that depended on it were suspended in part because of the order in the only sense the statute uses. The stay-at-home order on the patient is the clearest case of all: an order that confines every resident of a county to the home limits the travel of every patient of every practice in the county, and the Notice's own list of qualifying orders includes "[a] State's emergency proclamation that residents must shelter in place."²⁸³

The textual point

The clause reads "is fully or partially suspended during the calendar quarter due to orders." The phrase "during the calendar quarter" modifies "suspended"; it asks whether the suspension existed at any time in the quarter, not whether an order was issued in or addressed to the quarter. Congress did not write "orders in effect during the calendar quarter."²⁸⁴ Tri-State holds that a suspension includes a "delay" and that causation is but-for.²⁸⁵ The Notice recognizes both propositions: Q&A-22 makes an employer whose suspension ends in the middle of a quarter eligible for the whole quarter, and Q&A-16 treats the time an employer needs to move between modes of operation as part of the suspension where the delay exceeds two weeks.²⁸⁶ A practice ordered to emergency care on March 23, 2020, permitted to resume on May 1 under a respirator rule and a screening protocol, cut again in December, and released from its last binding condition on June 18, 2021, was delayed by those orders on every day between, and the delay did not end on the day the last condition lapsed.

The restoration arithmetic for this industry

What the orders compelled this industry to dismantle is recorded in the orders themselves, and so is the pace at which they permitted it to be rebuilt. The schedule: a general practice runs on a six-month hygiene recall; an emergency-only order of eight weeks removes one-third of a recall cycle, and every patient displaced from April and May 2020 was rescheduled into a summer and autumn whose capacity the reopening conditions had already reduced. Washington ordered dentistry to emergencies on March 19, 2020, phased it back from May 18, 2020 under Proclamation 20-24.1's protective-equipment and screening conditions, imposed new requirements for non-urgent procedures on December 3, 2020 and ended the phased framework only on June 30, 2021.²⁸⁷ Texas ordered every procedure not immediately necessary postponed on March 22, 2020, permitted resumption on May 1, 2020 only under rule 108.7's telephone screening, temperature checks, respirators for every aerosol procedure and written procedures, readopted the rule on August 25, 2020, amended it on February 19, 2021 and let it expire on June 18, 2021.²⁸⁸ Colorado ordered the cessation of elective procedures on March 23, 2020, permitted resumption on April 27, 2020 under Public Health Order 20-29 and amended that order thirteen times before superseding it on April 16, 2021.²⁸⁹ Minnesota postponed elective dental care "indefinitely" on March 23, 2020, permitted resumption on May 10, 2020 under a mandatory written plan and rescinded the plan requirement on May 27, 2021.²⁹⁰ Iowa prohibited every listed procedure on March 27, 2020, permitted resumption on May 8, 2020 only in compliance with the Board's Guidelines and continued that condition through successive proclamations to June 26, 2021.²⁹¹ Oregon cancelled dental procedures on March 23, 2020, permitted them from May 1, 2020 only under Health Authority rules with "the full force and effect of law" and rescinded the order on June 30, 2021.²⁹² New York limited dentistry to emergency care from March 2020, reopened it statewide on June 1, 2020 under the Interim Guidance for Dentistry, mandatory under the Executive Order 202 series, and withdrew the guidance on June 25, 2021.²⁹³ Louisiana prohibited routine dental visits on March 18, 2020, permitted time-sensitive procedures from April 27, 2020, continued the regime "until further notice" from July 2, 2020 and released it at 8:00 a.m. on May 24, 2021.²⁹⁴ The staff: the industry employed 954,616 persons in March 2020, 445,086 in April, 705,753 in May and 875,007 in June; it did not regain 980,000 until April 2021, did not exceed its February 2020 employment of 984,542 in any month until May 2021, stood below it again in June 2021, and in July 2021 stood 11,000 above it.²⁹⁵ The inventory: every reopening order required a protective-equipment reserve the practice was ordered to obtain "without relying on state or local PPE stockpiles" from a market the federal government allocated until June 30, 2021, and the respirators bought under the imported and decontaminated authorizations were withdrawn from lawful use on June 30, July 6 and July 12, 2021.²⁹⁶ An employer whose operation was ordered suspended through June 30 was not walking normally on July 1, and the orders' own step dates fix the arithmetic.

What was still in force when the general restrictions ended

When the last State dental conditions lapsed in June 2021, the following remained in force and are stated as the orders they are: the Standard, effective June 21, 2021; the National Emphasis Program naming offices of dentists; the CDC conveyance order and TSA directives; the FDA's respirator authorizations as narrowed; the State workplace standards of California, Virginia, Washington, Nevada and, from September 16, 2021, Oregon; the health-care masking rules, airborne-transmission controls, of thirteen States, the District of Columbia and Chicago; the paid-leave mandates of New York, New Jersey, Colorado and Massachusetts; the vaccination orders of Washington, Maine, Rhode Island, Illinois, Philadelphia, Los Angeles County, Pasadena, Denver and Puerto Rico from August 2, 2021; the Delta-wave orders of the metros from July 17, 2021; the emergency declarations of twenty-five States on September 21, 2021; the school masking and quarantine orders of the autumn, infection-prevention controls on the classroom; and the licensing and reporting regimes of Pennsylvania, California, Indiana, Tennessee, Massachusetts, New Mexico and Delaware.²⁹⁷ The six-quarters section states them with dates. They are not the residue of a suspension; they are orders limiting commerce, travel and group meetings in force during the calendar quarter.