Function by function
The Suspension Clause asks about "the operation of the trade or business." This section takes the industry's twelve functions one at a time and shows, for each, the orders that reached it, the change those orders compelled and the quarters in which the change was in force. The Notice's own test is the same: a partial suspension exists where an order closes a workplace "for certain purposes" while it stays open for others, or requires a change in "the format of service," or limits hours, occupancy or the manner of performance.182 Each function below was terminated, delayed or interrupted by order in every quarter of the period.
HC. In-home visits
The function
An aide, nurse or therapist travels to a home, enters it and performs personal care or skilled care in the patient's presence.
The orders
The stay-at-home orders of March through May 2020 confined the patient and the aide and permitted the visit only as essential work; the home health infection-control directive of March 10, 2020 required screening before or upon arrival and the immediate removal of symptomatic staff; the interim final rule of April 6, 2020 permitted, and the stay-at-home orders compelled, the substitution of telecommunications for visits the plan of care did not require in person; the health-care face-covering orders of 2021, the airborne-transmission controls the States kept in force after their general mask orders ended, governed the aide's work in the home; the OSHA standard of June 21, 2021 required screening of every household member at entry and a written plan for every home; and the mandates of New Jersey, New York, California, Delaware, Philadelphia, Los Angeles County, Denver, Maine and Massachusetts conditioned the aide's employment on vaccination or testing.183
The suspension
The function was interrupted wherever a patient refused entry under a stay-at-home order or a screening failed, delayed wherever a worker was removed or excluded, and performed throughout in a compelled manner. The operation of the in-home visit function was partially suspended in every quarter from the second quarter of 2020 through the third quarter of 2021 because of the stay-at-home orders (Ex. CA-002), QSO-20-18-HHA (Ex. SEC-04-010), CMS-1744-IFC (Ex. SEC-04-017), the health-care face-covering orders of 2021 (Ex. NJ-050; Ex. MA-050; Ex. WA-070), 29 C.F.R. § 1910.502 (Ex. SEC-04-014) and the vaccination or testing mandates naming home care (Ex. SEC-04-030; Ex. SEC-04-058; Ex. SEC-04-037; Ex. DE-055; Ex. SEC-04-045, as construed for home health workers by the Department's Health Alert of August 25, 2021, Ex. SEC-04-046; Ex. MET-LA-023; Ex. MET-DEN-025; Ex. ME-061; Ex. MA-069).
SN. Skilled nursing and assessments
The function
The initial assessment, the comprehensive assessment, the aide supervisory visit, the plan-of-care review and the hospice face-to-face encounter are performed in person by regulation.
The orders
The section 1135 waivers permitted the initial assessment by record review, virtual aide supervision and the hospice encounter by telehealth; the interim final rule of April 6, 2020 permitted telecommunications under the plan of care; every State's Appendix K permitted remote level-of-care assessments; and the orders confining patients and staff compelled the use of those permissions.184
The suspension
The manner of performance of every assessment and supervisory function changed by order from March 2020 through the end of the period; Q&A-17's "changing the format of service" describes it exactly. The operation of the skilled nursing and assessment function was partially suspended in every quarter from the second quarter of 2020 through the third quarter of 2021 because of the section 1135 waivers (Ex. SEC-04-015), CMS-1744-IFC (Ex. SEC-04-017), the Appendix K amendments (Ex. SEC-04-078), the stay-at-home orders that compelled their use (Ex. CA-002) and, from June 21, 2021, 29 C.F.R. § 1910.502 (Ex. SEC-04-014).
RS. Residential care
The function
The function comprises admission, room assignment, movement within the building and the care of residents by unit.
The orders
The orders that reached this function were the transfer and cohorting directive of April 13, 2020; the county orders of Los Angeles, Minneapolis, San Bernardino and Dallas fixing cohorting, dedicated units and single-facility staffing; New York's discharge-testing condition; New Jersey's Phase 0 and phased admissions; Maryland's, Massachusetts's, Michigan's, Louisiana's, Colorado's and the other States' residential-care orders, with Missouri's twenty-four-hour case-reporting order; the fourteen-day observation of new admissions under the reopening framework and the State orders; the federal testing condition from September 2, 2020; Washington's transfer and discharge proclamation of September 3, 2021; and the physical-environment and roommate waivers that permitted the rearrangement.185
The suspension
Admissions were delayed by test and quarantine, residents were moved by order, units were dedicated by order and staff were assigned by order. The operation of the residential care function was partially suspended in every quarter from the second quarter of 2020 through the third quarter of 2021 because of QSO-20-25-NH (Ex. SEC-04-026), the county congregate-care orders (Ex. MET-LA-066; Ex. MET-MSP-008; Ex. MET-RIV-027; Ex. MET-DFW-025), Executive Order 202.30 (Ex. SEC-04-049), Executive Directive 20-026 (Ex. SEC-04-043), the State residential-care orders (Ex. MD-043; Ex. MA-064; Ex. MI-072; Ex. LA-050; Ex. CO-042), the reopening framework as the States adopted it by order (Ex. SEC-04-012; Ex. SEC-04-043; Ex. WV-080; Ex. LA-050), the testing condition (Ex. SEC-04-004) and, in the third quarter of 2021, Washington's Proclamation 21-15 (Ex. WA-083).
VS. Visitation
The function
The function comprises family, clergy, ombudsman, hairdresser, podiatrist and prospective-resident visits, and the entry of the hospice, therapy and dialysis personnel who come into a facility from outside.
The orders
The orders that reached this function were the March 13, 2020 restriction to compassionate care, adopted by every State; the conditional rule of September 17, 2020; the State re-tightening of the winter; the March 10 and April 27, 2021 rules with their exceptions for unvaccinated residents in high-positivity counties, confirmed cases, quarantine and outbreak units; California's visitor vaccination verification from August 12, 2021; and the State visitation directives of New Jersey, Michigan, Louisiana, Maryland, Arkansas, Idaho and Tennessee.186
The suspension
The function was terminated from March 13 to September 17, 2020, conditional and excluded wherever the fourteen-day and ten percent triggers operated through the winter, and conditional through September 30, 2021. It is the clearest single instance in the period of a portion of an operation terminated by order. The operation of the visitation function was partially suspended in every quarter from the second quarter of 2020 through the third quarter of 2021 because of QSO-20-14-NH (Ex. SEC-04-001; Ex. SEC-04-002), QSO-20-39-NH and its revisions (Ex. SEC-04-002; Ex. SEC-04-003), the State visitation bans and directives (Ex. NM-002; Ex. NH-001; Ex. SEC-04-040; Ex. NJ-078; Ex. MI-072; Ex. LA-050; Ex. MD-059; Ex. AR-068; Ex. ID-051; Ex. TN-019) and California's visitor vaccination verification (Ex. SEC-04-068).
IN. Intake and referrals
The function
The function is the receipt of referrals from hospitals, physicians and facilities and the conversion of a referral into an admission or a start of care.
The orders
The orders that reached this function were the elective-procedure orders of nineteen States and New York in the spring of 2020 and Pennsylvania's from November 23, 2020 to August 23, 2021; the discharge conditions of New York and New Jersey; the admission holds of New Jersey's Phase 0 and Massachusetts's control order; the crisis-standards activations, surge-transfer rules and Washington's nursing-home transfer and discharge proclamation of 2021; and the visitation bans that excluded hospice staff from facilities.187
The suspension
The referral stream was cut by order in the spring of 2020, conditioned by order through the winter and into 2021, and delayed by the testing and screening conditions in every quarter. The operation of the intake and referral function was partially suspended in every quarter from the second quarter of 2020 through the third quarter of 2021 because of the elective-procedure orders (Ex. TX-004; Ex. UT-003; Ex. AK-007; Ex. PA-025), the discharge conditions (Ex. SEC-04-049; Ex. NJ-064), the admission holds (Ex. SEC-04-043; Ex. MA-064), the surge-transfer, transfer and crisis-standards orders (Ex. LA-056; Ex. WA-083; Ex. ID-064; Ex. AK-031) and the visitation bans that excluded hospice staff (Ex. SEC-04-001; Ex. SEC-04-002).
IC. Infection control and staff mandates
The function
The function comprises screening, testing, isolation, source control, personal protective equipment, cleaning, ventilation, planning, logging and reporting, and the management of the vaccination status of the workforce.
The orders
The orders that reached this function were the March 2020 screening directives; the State testing orders from April 29, 2020; the federal testing condition from September 2, 2020 and its schedule; the reporting condition from May 8, 2020; the vaccine-offering condition from May 21, 2021; the OSHA standard from June 21, 2021; and the vaccination or testing mandates of fifteen jurisdictions from July 26, 2021.188
The suspension
Every element of this function was created or fixed by order, and each consumed hours of every shift and excluded workers from every building. The operation of the infection control and staff mandate function was partially suspended in every quarter from the second quarter of 2020 through the third quarter of 2021 because of the screening directives (Ex. SEC-04-001; Ex. SEC-04-010), the State testing orders (Ex. MD-043; Ex. SEC-04-049; Ex. SEC-04-042; Ex. OH-079; Ex. CT-020; Ex. SEC-04-050), the testing, reporting and vaccine-offering conditions (Ex. SEC-04-004; Ex. SEC-04-005; Ex. SEC-04-073; Ex. SEC-04-006; Ex. SEC-04-008), 29 C.F.R. § 1910.502 (Ex. SEC-04-014) and the vaccination or testing mandates of fifteen jurisdictions (Ex. SEC-04-030; Ex. SEC-04-058; Ex. SEC-04-036; Ex. SEC-04-045).
TR. Transport
The function
The function comprises the aide's travel between homes, the resident's travel to dialysis and physician visits, and the operation of the facility's vans.
The orders
The orders that reached this function were the stay-at-home orders' travel provisions; the transit reductions and quarantine orders of 2020; the federal conveyance order from February 1, 2021; the TSA directives; and the travel quarantine lists of Kansas, Hawaii and others.189
The suspension
Travel was limited by order in 2020 and conditioned by federal order on every day of 2021. The operation of the transport function was partially suspended in every quarter from the second quarter of 2020 through the third quarter of 2021 because of the stay-at-home orders (Ex. CA-002; Ex. WA-016; Ex. IL-005), the travel quarantines (Ex. KS-057; Ex. HI-024), the county isolation and quarantine orders (Ex. MET-SEA-050) and, from February 1, 2021, the conveyance order and the TSA directives (Ex. FED-020; Ex. FED-050; Ex. ECO-B-006; Ex. ECO-B-007).
DN. Dining and activities
The function
The function comprises communal meals, group activities, outside entertainers, congregate religious services and beauty and barber services.
The orders
The orders that reached this function were the March 13, 2020 direction to "[c]ancel communal dining and all group activities"; the county orders of Los Angeles and Minneapolis; the phased resumption under the State orders adopting the May 18, 2020 framework; the outbreak and quarantine provisions of the 2021 visitation rule; and the State residential-care orders in force through 2021.190
The suspension
The function was terminated in the second quarter of 2020, restored by phase from the third, regressed in the fourth and first, and conditional through the second and third quarters of 2021. The operation of the dining and activities function was partially suspended in every quarter from the second quarter of 2020 through the third quarter of 2021 because of QSO-20-14-NH (Ex. SEC-04-001; Ex. SEC-04-002; Ex. MET-MKE-002), the county orders (Ex. MET-LA-066; Ex. MET-MSP-008), the reopening framework and the State orders adopting it (Ex. SEC-04-012; Ex. SEC-04-043; Ex. WV-080), the outbreak and quarantine provisions of the 2021 visitation rule (Ex. SEC-04-003) and the State residential-care orders (Ex. MI-072; Ex. LA-050; Ex. MD-059).
HR. Hiring, training and credentialing
The function
The function comprises nurse aide training and competency evaluation, background checks, licensure and credentialing, volunteer onboarding and the terms of employment.
The orders
The orders that reached this function were the nurse aide training and four-month waivers; the out-of-State credential orders; the single-facility staffing orders of Bexar and San Bernardino Counties; the testing condition's reach to "individuals providing services under arrangement and volunteers"; the vaccine documentation condition of May 21, 2021; the standard's log and medical removal provisions; the vaccination and testing mandates; New York's staffing emergency order of September 27, 2021; and the State statutes barring vaccination-status requirements.191
The suspension
Whom an employer could hire, from where, on what training and on what status was fixed by order throughout the period. The operation of the hiring, training and credentialing function was partially suspended in every quarter from the second quarter of 2020 through the third quarter of 2021 because of the nurse aide training waivers (Ex. SEC-04-015), the out-of-State credential orders (Ex. AGY-ST-HEALTH-SUBORDERS-058), the single-facility staffing orders (Ex. MET-SAT-009; Ex. MET-SAT-035; Ex. MET-RIV-022; Ex. MET-RIV-027), the testing and vaccine documentation conditions (Ex. SEC-04-004; Ex. SEC-04-008), 29 C.F.R. § 1910.502 (Ex. SEC-04-014), the vaccination and testing mandates (Ex. SEC-04-030; Ex. SEC-04-058; Ex. SEC-04-037), New York's Executive Order 4 (Ex. NY-070), Nebraska's Executive Order 21-12 (Ex. NE-068) and the State statutes barring vaccination-status requirements (Ex. MT-072; Ex. FL-030; Ex. AL-078).
OF. Offices and administration
The function
The function comprises intake, scheduling, billing, human resources and compliance.
The orders
The orders that reached this function were the stay-at-home and telework orders; the county occupancy and face-covering orders, the exposure-control conditions the counties placed on office premises; the weekly National Healthcare Safety Network reporting from May 8, 2020; the daily, twenty-four-hour and weekly State reporting orders of Rhode Island, Pennsylvania, Texas, Missouri and St. Louis County; the vaccination-status reporting from May 21, 2021; and the plan, log and reporting provisions of the OSHA standard.192
The suspension
The administrative function was moved out of the office by order in 2020 and burdened by compelled reporting in every quarter. The operation of the office and administration function was partially suspended in every quarter from the second quarter of 2020 through the third quarter of 2021 because of the stay-at-home and telework orders (Ex. CA-002), the reporting condition (Ex. SEC-04-006), the State reporting orders (Ex. RI-011; Ex. AGY-ST-HEALTH-SUBORDERS-069; Ex. PA-038; Ex. TX-005; Ex. MO-009; Ex. MET-STL-083), the vaccination-status reporting condition (Ex. SEC-04-008) and the plan, log and reporting provisions of 29 C.F.R. § 1910.502 (Ex. SEC-04-014).
WF. Workforce availability
The function
The function is the presence of aides, nursing assistants and nurses at work.
The orders
The orders that reached this function were the stay-at-home orders; the school and child-care closures of 2020 and the school face-covering and quarantine orders of 2021; the isolation and quarantine orders of the counties and States; the exclusion of untested, positive and symptomatic staff under the State orders and the federal condition; the medical removal provisions of the standard; the Families First Coronavirus Response Act leave mandate of 2020; and the vaccination and testing mandates of 2021.193
The suspension
The workforce was reduced by order on every day of the period; the Bureau of Labor Statistics' counts of 13.9 percent fewer nursing-care-facility jobs and 8.0 percent fewer assisted-living jobs in 2021 than in 2019 are the facts and circumstances against which the orders operated. The operation of the workforce function was partially suspended in every quarter from the second quarter of 2020 through the third quarter of 2021 because of the stay-at-home orders (Ex. CA-002; Ex. MT-009), the school and child-care closures of 2020 (Ex. MT-003; Ex. ECO-B-073; Ex. ECO-B-025) and the school orders of 2021 (Ex. NJ-055; Ex. IL-042; Ex. WA-075; Ex. WA-079; Ex. MET-HOU-038), the isolation and quarantine orders (Ex. MET-SEA-050; Ex. MET-SAN-024; and, as the District's guidance implementing them, Ex. DC-049), the exclusion and removal provisions of the testing condition and the standard (Ex. SEC-04-004; Ex. SEC-04-005; Ex. SEC-04-014), the Families First Coronavirus Response Act leave mandate of 2020 (Ex. FED-170; Ex. FED-171) and the vaccination and testing mandates of 2021 (Ex. SEC-04-030; Ex. SEC-04-058; Ex. SEC-04-032).
CB. Patients and payers
The function
The function is the patient base and the programs that pay for its care.
The orders
The orders that reached this function were the stay-at-home orders on patients and families; the visitation bans on families; the elective-procedure orders on the hospitals that refer; the interim final rules, waivers and Appendix K amendments that changed the terms of Medicare and Medicaid payment; the Medicaid maintenance-of-effort condition; and the renewed public health emergency on which each depended.194
The suspension
The industry's customers were confined and its payers' rules rewritten by order in every quarter. The operation of the patient and payer function was partially suspended in every quarter from the second quarter of 2020 through the third quarter of 2021 because of the stay-at-home orders on patients and families (Ex. CA-002), the visitation bans (Ex. SEC-04-001; Ex. SEC-04-003), the elective-procedure orders on the referring hospitals (Ex. TX-004; Ex. PA-025), the interim final rules, waivers and Appendix K amendments (Ex. SEC-04-017; Ex. SEC-04-006; Ex. SEC-04-004; Ex. SEC-04-008; Ex. SEC-04-015; Ex. SEC-04-078), the Medicaid maintenance-of-effort condition (Ex. FED-093) and the renewed public health emergency on which each depended (Ex. FED-010; Ex. FED-016).
The finding across functions
In each quarter from the second quarter of 2020 through the third quarter of 2021, orders from appropriate governmental authorities terminated, delayed or interrupted the HC, SN, RS, VS, IN, IC, TR, DN, HR, OF, WF and CB functions of this industry. The functions terminated outright for months (VS, DN), the functions conditioned on every day (RS, IC, IN) and the functions performed only in a compelled manner (HC, SN, TR, HR, OF, WF, CB) together make a partial suspension of the operation of every employer in the industry that exceeds any measure of "more than nominal" the Service has ever proposed.195