Hospitals and Health Systems

The six quarters

In each of the six quarters from the second quarter of 2020 through the third quarter of 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19 were in force on the quarter's first and last day, reached this industry's functions by name, and caused a temporary delay, interruption or termination of a more than nominal portion of its operations. The instruments are stated below with their dates and exhibit identifiers; the third quarter of 2021 is treated at length.

The second quarter of 2020

On April 1, 2020 the elective and non-urgent surgical and procedural operations of every hospital in at least twenty-nine States were terminated by order: New York's Executive Order 202.10 (March 23) authorized and directed the Commissioner of Health to direct "all general hospitals, ambulatory surgery centers, office-based surgery practices and diagnostic and treatment centers to increase the number of beds available to patients, including by canceling all elective surgeries and procedures" (Ex. NY-005); New Jersey's Executive Order No. 109 suspended "all 'elective' surgeries performed on adults, whether medical or dental, and all 'elective' invasive procedures" from 5:00 p.m. on March 27 (Ex. NJ-006); Texas's GA-09 ordered "all licensed health care professionals and all licensed health care facilities" to "postpone all surgeries and procedures that are not immediately medically necessary" from March 22 (Ex. TX-004); Washington's Proclamation 20-24 prohibited every hospital from providing procedures whose delay was "not anticipated to cause harm to the patient within the next three months" (Ex. WA-015); Florida's Executive Order 20-72 prohibited "any medically unnecessary, non-urgent or non-emergency procedure or surgery" (Ex. FL-009); Minnesota's Executive Order 20-09 postponed "all non-essential or elective surgeries and procedures ... that utilize PPE or ventilators" "indefinitely" on pain of a misdemeanor (Ex. SEC-01-066); Oregon's Executive Order 20-10 cancelled every elective and non-urgent procedure using protective equipment "across all care settings" (Ex. SEC-01-068); and the same command issued in Pennsylvania (Ex. PA-004), Massachusetts (Ex. SEC-01-071), Maryland (Ex. MD-040), Vermont (Ex. SEC-01-080), Kentucky (Ex. KY-009), Virginia (Order of Public Health Emergency Two), West Virginia (Ex. WV-014), Tennessee (Ex. SEC-01-073), Alabama (Ex. AL-011), Oklahoma (Ex. OK-006), Ohio (Ex. OH-007), Michigan (Ex. SEC-01-086), Indiana (Ex. IN-011), Iowa (the proclamation effective March 27), Arizona (Ex. AZ-004), Colorado (the order effective March 23), New Mexico (Ex. NM-007), Utah (the State Public Health Order of March 23) and Alaska (Ex. AK-007), with Arkansas (April 3, Ex. AR-040), Nebraska (April 3, Ex. SEC-01-107), South Dakota (April 6, Ex. SD-009, converting the March 23 directive, Ex. SD-005, into a command), Mississippi (April 10, Executive Order 1470, Ex. SEC-01-088) and Louisiana (by Department of Health notice from March 21, superseded April 20, Ex. LA-043) following within the quarter's first ten days.⁶² Connecticut's Office of Health Strategy waived the certificate-of-need requirements for every hospital and outpatient surgical facility that temporarily suspended services or added beds, from March 25, 2020 for the duration of the emergency (Ex. CT-064), and its Department of Public Health barred visitors from nursing homes, residential care homes and chronic disease hospitals from March 13, 2020 (Ex. CT-059; rescinded September 25, 2020, Ex. CT-060). Visitors were barred from hospitals by order in Michigan (Ex. MI-003), Massachusetts (Ex. MA-057), Alabama (Ex. AL-005), Alaska (by Health Mandate 005 as revised April 7, 2020, Ex. AK-007, and from April 20, 2020 by Health Mandate 015, Ex. AK-017), San Diego County (Ex. MET-SAN-002) and Riverside County (Ex. MET-RIV-006), and from nursing homes and long-term care facilities in every State (Ex. NH-001 ¶ 3; Ex. NJ-063; Ex. OH-009; Ex. ND-020; Ex. NM-002; Ex. MT-003; Ex. WA-002; Ex. WA-012).⁶³ Bed capacity was commanded by percentage: New York's fifty percent increase (Ex. NY-005), Arizona's capacity order (Ex. AZ-008), Virginia's Executive Order 52 (Ex. VA-003), Montana's surge directive (Ex. MT-006), Texas's twenty-five percent reserve as the condition of resuming any procedure from April 22 (Ex. TX-009), its fifteen percent reserve from May 1 (Ex. TX-012), Iowa's thirty percent reserve from April 27 (Ex. IA-011) and Kentucky's thirty percent reserve as the condition of the second phase from May 6 (Ex. KY-015; Ex. KY-029).⁶⁴ The Federal Government reorganized the hospital's terms of operation by section 1135 waiver from March 30 (Ex. SEC-01-010), rewrote Medicare's rules by interim final rule on March 31 and May 8 (Ex. FED-090; Ex. FED-091), suspended routine surveys and prioritized infection control (Ex. FED-099; Ex. FED-165), placed respirators, masks, gloves and gowns under allocation from April 7 (Ex. SEC-01-013; Ex. FED-076), designated them scarce materials (Ex. FED-074), postponed elective procedures at every military treatment facility from March 31 to May 21, mandated paid leave from April 1 (Ex. FED-170; Ex. ECO-B-002), set the terms of every telehealth visit (Ex. FED-194), and suspended immigrant entry from April 23 (Ex. FED-210).⁶⁵ The metros added their own: Minneapolis's misdemeanor-backed congregate-facility regulation from April 28 (Ex. MET-MSP-008), San Bernardino County's infection-prevention and exposure-control order from April 6 (entry screening, masking of all staff and single-facility staffing), restated May 8 with face coverings for every individual and N-95 respirators for health care professionals (Ex. MET-RIV-022; Ex. MET-RIV-027; Ex. MET-RIV-023), Bexar County's one-facility rule for long-term-care staff from April 4 (Ex. MET-SAT-009), St. Louis County's rapid-notification, residential-facility and quarantine orders from April 2 (Ex. MET-STL-083; Ex. MET-STL-056; Ex. MET-STL-055), King County's isolation order from March 28 (Ex. MET-SEA-004) and Denver's non-congregate sheltering order (Ex. MET-DEN-004).⁶⁶ On June 30, 2020 no hospital in the United States performed an elective procedure on its own terms: New Jersey's resumption was "subject to limitations and precautions set forth in policies ... to be issued by the Department of Health" on capacity, protective equipment, staffing, cohorting, testing, visitors and reporting (Ex. NJ-016; Ex. NJ-067; Ex. NJ-084; Ex. NJ-085; Ex. NJ-066); New York's resumption ran county by county on capacity and testing conditions with New York City and Long Island hospitals under the cancellation into June (Ex. NY-019); Texas held every hospital to a fifteen percent reserve and, from June 26, re-postponed elective procedures in Bexar, Dallas, Harris and Travis Counties, extending the postponement on June 30 to more than one hundred counties in eleven Trauma Service Areas (Ex. TX-012; Ex. TX-020); Washington's Proclamation 20-24.1 permitted non-urgent procedures only "in good faith and with reasonable clinical judgment to meet and follow the procedures and criteria" the Governor listed (Ex. WA-032); Minnesota required a written plan, protective-equipment supply, testing and capacity monitoring of every facility (Ex. SEC-01-067); Oregon, Colorado, Arizona, Florida, Maryland, Ohio, Louisiana, New Mexico, West Virginia, Alaska, Indiana, Kentucky, Vermont, New Hampshire and Massachusetts governed resumption by criteria, attestation or phase (Ex. SEC-01-069; Ex. SEC-01-090; Colorado's Public Health Order 20-29; Ex. AZ-015; Ex. SEC-01-065; Ex. MD-044; Ex. OH-027; Ex. LA-045; Ex. NM-013; Ex. WV-023; Ex. WV-024; Ex. AK-017; Ex. IN-022; Ex. KY-015; Vermont's amended and restated order, § 4; Ex. NH-051; Ex. MA-061); and every one of the federal instruments above remained in force, the immigrant-entry suspension having been extended to H-1B and L-1 entry on June 24 (Ex. FED-211).⁶⁷

How the orders reached the functions

SX terminated in more than thirty States for six to ten weeks and then permitted only on conditions; IP reorganized by percentage reserves, surge plans and cohorting; VS terminated; ED reorganized under waiver terms and screening; OC closed or converted, with telehealth on federal terms; IC compelled in every particular (screening, testing, protective equipment, isolation); SC allocated by federal rule and conditioned by State orders forbidding resort to public stockpiles; HR redefined by waiver and licensing suspension, with entry suspended; OF converted to telework with daily reporting; WF removed by quarantine, isolation and mandated leave; CB confined by the stay-at-home orders and the nursing-home admission and visitation orders; MK terminated by the gathering bans.⁶⁸

During the calendar quarter beginning April 1, 2020 and ending June 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the elective-procedure orders of more than thirty States (Ex. TX-004; Ex. NY-005; Ex. NJ-006; Ex. WA-015; Ex. FL-009; Ex. SEC-01-066; Ex. SEC-01-068; Ex. OH-007; Ex. MD-040; Ex. KY-009), the capacity-reserve orders (Ex. TX-009; Ex. TX-012; Ex. IA-011; Ex. KY-015), the hospital visitation orders (Ex. MI-003; Ex. MA-057; Ex. AL-005; Ex. AK-007) and the long-term-care visitation orders on every discharge destination (Ex. NH-001 ¶ 3; Ex. NJ-063; Ex. OH-009), the conditional-resumption orders (Ex. NJ-016; Ex. NY-019; Ex. WA-032; Ex. SEC-01-067; Ex. AZ-015; Ex. SEC-01-065), the federal waiver, allocation, leave and entry instruments (Ex. SEC-01-010; Ex. SEC-01-013; Ex. FED-170; Ex. FED-210), and the metro orders on facilities and staff (Ex. MET-SAN-002; Ex. MET-RIV-023; Ex. MET-MSP-008; Ex. MET-SAT-009), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by terminating the industry's elective and non-urgent surgical and procedural operations, reserving its beds, barring its visitors, allocating its supplies and confining its patients and its workforce.

The third quarter of 2020

On July 1, 2020 every hospital in the United States performed elective procedures, if at all, on governmental conditions. Texas's GA-27, expanded on June 30, postponed every surgery and procedure "not medically necessary to diagnose or correct a serious medical condition" in more than one hundred counties in eleven Trauma Service Areas and held every hospital to the fifteen percent reserve of GA-19 (Ex. TX-020; Ex. TX-012); on September 17 GA-31 superseded both, made the postponement a standing rule for "any Trauma Service Area that has had seven consecutive days in which the number of COVID-19 hospitalized patients as a percentage of all hospitalized patients exceeds 15 percent," and required every licensed hospital in the State to "reserve at least 10 percent of its hospital capacity for treatment of COVID-19 patients" until GA-34 took effect on March 10, 2021 (Ex. TX-024).⁶⁹ New Jersey's Executive Directives 20-016 and 20-018 of June 24, 2020 governed every hospital's and ambulatory surgery center's elective procedures, its testing directive governed every facility and its visitation directives ran from June 19 and August 20 (Ex. NJ-084; Ex. NJ-085; Ex. NJ-066; Ex. NJ-071; Ex. NJ-074).⁷⁰ Washington's Proclamation 20-24.1, Minnesota's Executive Order 20-51, Oregon's Executive Order 20-22, Colorado's Public Health Order 20-29, Arizona's Executive Order 2020-32, Florida's Executive Order 20-112 conditions, Ohio's amended order of June 2, Maryland's restated directives, Massachusetts's order of June 24, New Mexico's guidelines, West Virginia's Executive Orders 28-20 and 30-20, Kentucky's orders as modified September 10, Louisiana's Notice ALL-020 as extended "until further notice" on July 2, Rhode Island's Executive Order 20-70 of September 2, New Hampshire's mandatory guiding principles, Connecticut's certificate-of-need waiver for suspended services, Vermont's amended and restated order, Iowa's thirty percent reserve, Arkansas's pre-procedure testing to August 1 and the District's Phase Two guidance governed the function in their States on every day of the quarter (Ex. WA-032; Ex. SEC-01-067; Ex. SEC-01-069; Ex. AZ-015; Ex. SEC-01-065; Ex. OH-027; Ex. MD-044; Ex. MA-061; Ex. NM-013; Ex. WV-023; Ex. WV-024; Ex. KY-029; Ex. LA-045; Ex. LA-046; Ex. RI-023; Ex. NH-051; Ex. CT-064; Ex. IA-011; Ex. AR-059; Ex. DC-069; Ex. DC-038).⁷¹ Visitation remained barred or restricted by Michigan's Executive Orders 2020-136, 2020-156 and 2020-174 to September 30 (Ex. MI-003), Massachusetts's order (Ex. MA-057), New Hampshire's Executive Order 2020-04 at every long-term-care facility (Ex. NH-001 ¶ 3), Alabama's Safer at Home orders (Ex. AL-024; Ex. AL-034), Tennessee's Executive Order 49 and its long-term-care guidelines (Ex. TN-019; Ex. TN-052), Ohio's Fourth Amended nursing-home order (Ex. OH-009), Montana's directives (Ex. MT-034; Ex. MT-035), North Dakota's Executive Order 2020-22.1 (Ex. ND-048), Louisiana's order of September 18 (Ex. LA-050), Rhode Island's guidance (Ex. RI-090) and Bexar County's bar on nursing-home visitation from July 17 (Ex. MET-SAT-035; Ex. MET-SAT-037).⁷² On September 2, 2020 CMS made daily COVID-19 reporting a condition of participation for every hospital and critical access hospital: "the hospital must report information in accordance with a frequency, and in a standardized format, as specified by the Secretary during the PHE for COVID-19," on pain of termination from Medicare (Ex. SEC-01-004; Ex. FED-092; Ex. FED-168).⁷³ FEMA extended the protective-equipment allocation rule on August 10 to December 31, 2020 (Ex. FED-077); the Department of Labor narrowed the health-care-provider exclusion from the FFCRA leave mandate on September 16 (Ex. ECO-B-003); CMS revised its survey and enforcement posture on August 17 (Ex. FED-166); Proclamations 10014 and 10052 suspended entry throughout (Ex. FED-210; Ex. FED-211); and the statewide face-covering orders of July 2020, one of the airborne-transmission controls the States imposed on every indoor workplace and place of public accommodation, bound every hospital as an employer and as a place of public accommodation.⁷⁴ Contra Costa County required every health care facility to offer testing from September 25 (Ex. MET-SFO-037); San Diego County's orders barred non-essential personnel from hospitals throughout (Ex. MET-SAN-010; Ex. MET-SAN-013); St. Louis County's face-covering order, an exposure control on every workplace, reached every employee (Ex. MET-STL-058). On September 30, 2020 every regime above was in force.

How the orders reached the functions

SX under conditional-resumption regimes in every State and re-postponed by order in more than one hundred Texas counties; IP under percentage reserves and the new federal reporting condition; VS barred or restricted in at least twelve States; IC compelled by testing, screening and face-covering orders, the infection-prevention and exposure-control regime of every facility; SC allocated to December 31; HR under waiver and entry suspension; OF reporting daily to two governments; WF under quarantine orders and the leave mandate; CB under the nursing-home admission and visitation orders and the reopening caps on the patient base; MK capped by the gathering limits.

During the calendar quarter beginning July 1, 2020 and ending September 30, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely Texas's re-postponement and regional-trigger orders (Ex. TX-020; Ex. TX-024), the conditional-resumption regimes of the States (Ex. NJ-084; Ex. NJ-085; Ex. WA-032; Ex. SEC-01-067; Ex. SEC-01-069; Ex. AZ-015; Ex. OH-027; Ex. KY-029; Ex. LA-046), the visitation orders (Ex. MI-003; Ex. MA-057; Ex. TN-019; Ex. LA-050; Ex. MET-SAT-035), the federal reporting condition of participation (Ex. SEC-01-004), the allocation, leave and entry instruments (Ex. FED-077; Ex. ECO-B-003; Ex. FED-211) and the metro facility orders (Ex. MET-SFO-037; Ex. MET-SAN-013), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by conditioning every elective procedure on governmental criteria, re-suspending the function in the State's largest counties, holding beds in reserve, barring visitors and making the hospital's census a condition of its Medicare participation.

The fourth quarter of 2020

On October 1, 2020 the third-quarter regimes remained, and the winter re-tightening then suspended or capped the industry's elective operations a second time. Texas's GA-32 (October 7, effective October 14) left GA-31's ten percent reserve in force and continued its postponement, restated for every "Trauma Service Area that has had seven consecutive days in which the number of COVID-19 hospitalized patients as a percentage of total hospital capacity exceeds 15 percent," and the Department of State Health Services' list of such areas ran to eighteen of the State's twenty-two Trauma Service Areas by January 15, 2021 (Ex. SEC-01-050; Ex. TX-026).⁷⁵ Pennsylvania's Secretary of Health wrote to every acute care hospital's chief executive on November 17 and on November 23 ordered that, upon a Reduction Notice for any region meeting two of three metrics (a thirty-three percent staffing-shortage rate, a fifty percent rise in admissions in forty-eight hours, or bed availability below ten percent), every acute care hospital in the region "shall reduce by fifty percent (50%) elective procedures that are scheduled to be performed at the Acute Care Hospital in the seven (7) days following the effective date" (Ex. PA-069; Ex. PA-025).⁷⁶ California's State Public Health Officer ordered hospitals in regions with ten percent or less intensive-care capacity to accept transfers and delay non-essential surgeries from December 17, 2020, by the Hospital Surge Order re-issued on January 5, 2021 (Ex. CA-026), and placed the State under the Regional Stay at Home Order from December 5.⁷⁷ Nebraska paused elective surgeries requiring an overnight stay by directed health measure from November 16 under a framework tied to the statewide hospitalization rate (Ex. NE-023); Iowa limited surgeries from November 17 and continued the limits on December 10 and 17 (Ex. IA-032; Ex. IA-033); Indiana directed hospitals to postpone non-emergent inpatient procedures from December 16 to January 3, 2021 (Ex. IN-048); Mississippi imposed a statewide hospital rule on October 21 and re-imposed it on December 11 by Executive Order 1535, and its State Health Officer postponed elective surgeries requiring overnight hospitalization on December 15 (Ex. MS-040); New Mexico restricted non-essential surgical procedures from December 11 (Ex. NM-043); Massachusetts's Commissioner ordered the scheduling of elective invasive procedures from 12:01 a.m. on December 11 (Ex. MA-065; rescinded by Ex. MA-066); Utah declared a state of emergency on November 8 on the finding that "85% of such [intensive-care] capacity is being used" (Ex. UT-028); Washington's Proclamation 20-24.2, the order Tri-State construed, took effect at 12:01 a.m. on December 3 with "over 30 separate requirements" (Ex. WA-049); and Maryland's Secretary restated the health care directive on December 17 with traveler testing, hospital surge and visitation duties (Ex. MD-050).⁷⁸ The nursing-home layer tightened: Ohio's Fifth Amended order from October 12 (Ex. OH-036), Michigan's MDHHS residential-care orders of October 6 and 21 (Ex. MI-051; Ex. MI-055), Arkansas's revised directive of October 6 and December 23 (Ex. AR-064; Ex. AR-068), Idaho's visitation guidelines of October 23 (Ex. ID-049) and Marion County's tested-visitor and hospital face-covering rule, an infection-prevention control on every entry, from November 16 to December 14 (Ex. MET-IND-035).⁷⁹ The metros re-tightened: Detroit's twenty-five-page order of October 9 with its health-care, outpatient and telehealth sections (Ex. MET-DET-001), Wayne County's orders of October 8 and 16 (Ex. MET-DET-014; Ex. MET-DET-032), San Antonio and Bexar County's ten percent hospital reserve from November 25 (Ex. MET-SAT-051; Ex. MET-SAT-052), St. Louis County's Safer At Home Order from November 17 (Ex. MET-STL-074) and San Diego County's Regional Stay at Home implementation from December 6 (Ex. MET-SAN-017; Ex. MET-SAN-018).⁸⁰ Federally, CMS-9912-IFC issued November 2 (Ex. FED-093), the Title 42 order was replaced October 13 (Ex. FED-037), the allocation rule was extended December 31 to June 30, 2021 (Ex. FED-078), and Proclamations 10014 and 10052 were extended to March 31, 2021 (Ex. FED-211). On December 31, 2020 every re-tightening order above was in force.

How the orders reached the functions

SX suspended, capped or conditioned a second time in twelve States, Texas, Pennsylvania, California, Nebraska, Iowa, Indiana, Mississippi, New Mexico, Massachusetts, Utah, Washington and Maryland, by orders keyed to the hospital's own census; IP under regional triggers, transfer orders and reserves; VS under the winter visitation orders; IC under Proclamation 20-24.2's thirty requirements and their counterparts; SC allocated through June 30, 2021; OF reporting daily with new fields; WF under quarantine and the leave mandate to December 31; CB under the Regional Stay at Home Orders and the nursing-home orders; MK prohibited by the winter gathering bans.

During the calendar quarter beginning October 1, 2020 and ending December 31, 2020, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the winter hospital orders (Ex. SEC-01-050; Ex. TX-024; Ex. TX-026; Ex. PA-025; Ex. CA-026; Ex. NE-023; Ex. IA-032; Ex. IN-048; Ex. MS-040; Ex. NM-043; Ex. MA-061; Ex. MA-065; Ex. UT-028; Ex. WA-049; Ex. MD-050), the nursing-home orders (Ex. OH-036; Ex. MI-051; Ex. AR-068), the metro orders (Ex. MET-DET-001; Ex. MET-SAT-051; Ex. MET-STL-074; Ex. MET-SAN-017), the federal reporting condition and allocation rule (Ex. SEC-01-004; Ex. FED-078) and the entry proclamations (Ex. FED-211), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by ordering the industry's elective and non-urgent operations suspended or cut in half for the second time in nine months, by triggering those cuts on the hospital's own census, and by holding every discharge, visitor and supply under order.

The first quarter of 2021

On January 1, 2021 the winter orders were in force in every jurisdiction named above. California's State Public Health Officer re-issued the Hospital Surge Order on January 5, running to February 5 (Ex. CA-026), and the Regional Stay at Home Order ran to January 25 (Ex. MET-SAN-018); Texas's regional trigger governed eighteen Trauma Service Areas on January 15 and ran until GA-34 rescinded it at 12:01 a.m. on March 10 (Ex. TX-026; Ex. TX-024); New Mexico's restriction ran to January 4 (Ex. NM-043); Iowa's limits ran to February 7 (Ex. IA-034); Massachusetts's order ran to March 1 (Ex. MA-065; Ex. MA-066); Mississippi's hospital rule ran to March 3; Indiana's hospital directive ran to January 3 and its reprioritization duty to January 31, with the county-based measures of Executive Orders 21-02 and 21-06 to April 5 (Ex. IN-048; Ex. IN-051; Ex. IN-053; Ex. IN-056); Nebraska's framework moved to its green phase on January 30 and ended May 24 (Ex. NE-023); Pennsylvania's reduction order and its reporting order, amended January 27 to add the federal reporting fields and "Number of employees unavailable for work," ran throughout (Ex. PA-025; Ex. PA-044); Washington's Proclamation 20-24.2 ran throughout (Ex. WA-049); and the conditional regimes of New Jersey, Minnesota, Oregon, Maryland, West Virginia, Kentucky, Ohio, Arizona, Rhode Island (Executive Order 20-70 as carried by Executive Orders 21-67 and 21-81, recited in the Appropriations Act), New Hampshire, Vermont and Montana, and Connecticut's certificate-of-need waiver for suspended services, continued (Ex. NJ-074; Ex. NJ-084; Ex. NJ-085; Ex. SEC-01-067; Ex. SEC-01-069; Ex. MD-050; Ex. WV-023; Ex. WV-024; Ex. KY-029; Ex. OH-027; Ex. AZ-015; Ex. RI-023; Ex. RI-073; Ex. NH-051; Ex. CT-064; Ex. MT-006).⁸¹ Visitation was governed by New Jersey's Executive Directive 21-001 from March 22 (Ex. NJ-078), Ohio's Sixth and Seventh Amended orders (Ex. OH-102; Ex. OH-075), Michigan's MDHHS residential-care orders of March 2 and 17, 2021, successors to the October 6, 2020 order (Ex. MI-051), Idaho's revised guidelines of March 19 (Ex. ID-050), North Dakota's Executive Order 2020-22.1 to March 12 (Ex. ND-048), Massachusetts's continuing hospital order and New Hampshire's continuing long-term-care visitor prohibition (Ex. MA-057; Ex. NH-001 ¶ 3).⁸² The federal layer added Executive Order 13991 (January 20), which imposed masking, distancing and the other CDC infection-prevention measures on every federal building and on-site contractor (Ex. FED-060); Executive Orders 13998 and 13999 (January 21) (Ex. FED-061; Ex. FED-062); OMB's twenty-five percent occupancy cap (Ex. FED-270); the CDC's inbound-testing order (January 26) and conveyance face-covering order (February 1), an airborne-transmission control on every commute by bus, rail and air, enforced by TSA directive (Ex. FED-042; Ex. FED-020; Ex. FED-050); Proclamation 10143 (Ex. FED-207); OSHA's National Emphasis Program (March 12) (Ex. FED-082); and, on March 11, the re-enactment of the Suspension Clause for the third quarter of 2021 (Ex. FED-174).⁸³ On March 31, 2021 the general orders had ended in Texas (March 10) and Mississippi (March 3) and North Dakota's visitation order had ended March 12; in each the hospital instruments that remained, the disaster declaration, the reporting duties and the federal layer, carried the quarter, and in every other jurisdiction named in this paragraph a conditional regime, the reduction order or a visitation order remained in force on March 31.

How the orders reached the functions

SX under the winter orders to their stepped expiry between January 4 and April 5 and under the conditional regimes throughout; IP under the surge, transfer and reserve orders; VS under the winter visitation orders; IC under Proclamation 20-24.2 and its counterparts; SC allocated; HR under Proclamation 10014 to February 24 and Proclamation 10052 to March 31 and the new Proclamation 10143; OF reporting with new fields from January 27; WF under quarantine orders and the face-covering control on every commute; CB under the Regional Stay at Home Orders to January 25 and the nursing-home orders; MK under the winter gathering caps.

During the calendar quarter beginning January 1, 2021 and ending March 31, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the continuing winter hospital orders (Ex. CA-026; Ex. TX-026; Ex. TX-024; Ex. IA-034; Ex. MA-065; Ex. MA-066; Ex. IN-048; Ex. IN-051; Ex. NE-023; Ex. PA-025; Ex. PA-044; Ex. WA-049), the conditional-resumption regimes (Ex. NJ-084; Ex. SEC-01-067; Ex. SEC-01-069; Ex. MD-050; Ex. WV-023; Ex. OH-027; Ex. AZ-015), the visitation orders (Ex. NJ-078; Ex. OH-102; Ex. OH-075; Ex. MI-051; Ex. ID-050), and the federal workplace, conveyance, entry and reporting orders (Ex. FED-060; Ex. FED-020; Ex. FED-207; Ex. SEC-01-004), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by holding the industry's elective operations suspended or capped through the winter, by keeping its beds, discharges and visitors under order, and by imposing the airborne-transmission control of face coverings on every commute and the workplace infection-prevention and exposure-control requirements of Executive Order 13991 on every federal counterparty.

The second quarter of 2021

On April 1, 2021 Pennsylvania's reduction order, Washington's Proclamation 20-24.2, Indiana's county-based measures (to April 5), Arizona's exemption regime (to April 1), Ohio's amended requirements (to April 5), Minnesota's Executive Order 20-51 (to May 27), Oregon's Executive Order 20-22 (to June 30), Kentucky's orders (to June 11), Montana's directives (to June 30), New Hampshire's mandatory principles (to May 7), Vermont's section 4 (to June 15), Alabama's hospital visitation rules (to May 31), the New Jersey, Maryland, West Virginia and Rhode Island regimes (Rhode Island's by Executive Orders 21-67 and 21-81, recited in the Appropriations Act) and Connecticut's certificate-of-need waiver for suspended services were in force (Ex. PA-025; Ex. WA-049; Ex. IN-056; Ex. AZ-015; Ex. OH-027; Ex. SEC-01-067; Ex. SEC-01-069; Ex. KY-029; Ex. MT-006; Ex. NH-051; Ex. AL-051 ¶ 7; Ex. NJ-084; Ex. NJ-085; Ex. NJ-074; Ex. NJ-078; Ex. MD-043; Ex. WV-023; Ex. WV-024; Ex. RI-023; Ex. RI-073; Ex. CT-064).⁸⁴ Colorado's Public Health Order 20-29 series governed procedures to April 16, its Thirteenth Amended version of April 9, 2021 being the last, when Public Health Order 20-38 and the county dial orders replaced it, Denver holding "limited healthcare settings" to fifty percent to May 15 (Ex. MET-DEN-014). Michigan's MDHHS issued its residential-care order of May 21, in force through the period; Ohio ordered testing of nursing-home and residential-care residents and staff on May 4 (Ex. OH-049; Ex. OH-071); Maryland's Secretary restated the health care directive on April 28 and June 15, the latter, MDH Order 2021-06-15-03, carrying hospital surge-capacity duties to December 31, 2021; New Jersey amended Executive Directives 20-016 and 20-018 on June 16 and continued every directive by statute to January 11, 2022 (Ex. NJ-084; Ex. NJ-085; Ex. NJ-053); Massachusetts kept the infection-prevention requirement of face coverings in health care and congregate settings from May 29 under its modified public health emergency (Ex. MA-050; Ex. MA-049); and Delaware amended its hospital licensing standards by emergency order on June 17, effective July 1 (Ex. DE-062).⁸⁵ The Governors and legislatures of Florida, Montana and Georgia fixed what a hospital could require of its patients, visitors and staff during the quarter: Florida's Executive Order 21-81 (April 2, 2021), which section 381.00316 codified from July 1, 2021, Montana's House Bill 702 (May 7, 2021) and Georgia's Executive Order 05.25.21.01 (May 25, 2021) (Ex. FL-056; Ex. SEC-01-081; Ex. SEC-01-084); Arkansas's Act 977 (April 28, 2021) took effect July 28, 2021 and is relied on for the third quarter (Ex. SEC-01-083).⁸⁶ Federally, CMS's long-term-care vaccination rule took effect May 21 and conditioned every hospital discharge (Ex. FED-094; Ex. FED-163); OSHA published the Healthcare Emergency Temporary Standard on June 21, with compliance by July 6 and July 21, and issued its inspection procedures June 28 (Ex. SEC-01-001; Ex. SEC-01-002); OMB lifted the federal occupancy cap on June 10 (Ex. FED-271); Proclamation 10199 suspended entry from India from May 4 (Ex. FED-208); the TSA directive was renewed May 12 (Ex. FED-051); the allocation rule ran to June 30 with exemptions notified June 11 (Ex. FED-078; Ex. FED-079); and Executive Order 13991 and the conveyance order ran throughout (Ex. FED-060; Ex. FED-020).⁸⁷ The metros' facility orders continued: San Diego County's general order to June 15 and its isolation and quarantine orders throughout (Ex. MET-SAN-021; Ex. MET-SAN-022; Ex. MET-SAN-023); San Bernardino County's order of June 15 continuing the entry-screening and face-covering controls of every licensed facility (Ex. MET-RIV-031); San Francisco's Order C19-07y of June 11 requiring every business with personnel in the settings the order designated, hospitals and skilled nursing facilities among them, to ascertain vaccination status (Ex. MET-SFO-008); Boulder County's health-care face-covering control to June 10 (Ex. MET-DEN-031); St. Louis County's Sixth Amended Quarantine and Isolation Order of April 21 (Ex. MET-STL-067).⁸⁸ On June 30, 2021 Oregon's Executive Order 20-22 was in its last day, and every other instrument above except those with earlier stated end dates remained in force.

How the orders reached the functions

SX under the conditional regimes to their stepped expiry and under Pennsylvania's and Washington's standing orders throughout; IP under Maryland's surge duties and the federal reporting condition; VS under the residential-care orders and, from May 29, Massachusetts's health-care infection-prevention order; IC under the federal standard from June 21 and the State testing orders; SC allocated to June 30; HR under the entry proclamations and the anti-mandate instruments of three States; OF reporting and, in the emergency temporary standard's terms, writing the COVID-19 plan; WF under the face-covering control on every commute and the quarantine orders; CB under the long-term-care vaccination rule and the residential-care orders; MK under the metro event caps to their expiry.

During the calendar quarter beginning April 1, 2021 and ending June 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the conditional-resumption and standing hospital orders (Ex. PA-025; Ex. WA-049; Ex. SEC-01-067; Ex. SEC-01-069; Ex. KY-029; MDH Order 2021-06-15-03; Ex. NJ-084; Ex. NJ-085; Ex. WV-023; Ex. IN-056; Ex. OH-027; Ex. AZ-015), the residential-care, hospital-visitation and testing orders (the Michigan MDHHS order of May 21, 2021; Ex. OH-049; Ex. OH-071; Ex. AL-051), the health-care infection-prevention and licensing orders (Ex. MA-050; Ex. DE-062), the anti-mandate orders and statutes (Ex. FL-056; Ex. SEC-01-081; Ex. SEC-01-084), the federal standard, vaccination rule, reporting condition, allocation rule, workplace, conveyance and entry orders (Ex. SEC-01-001; Ex. FED-094; Ex. SEC-01-004; Ex. FED-078; Ex. FED-060; Ex. FED-020; Ex. FED-208) and the metro facility orders (Ex. MET-SAN-022; Ex. MET-RIV-031; Ex. MET-SFO-008), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by holding the industry's elective operations under governmental conditions to their expiry, by keeping its beds, discharges and visitors under order, by placing every hospital workplace under a federal emergency standard from June 21, and by fixing by order and statute what it could require of those it treated and employed.

The third quarter of 2021

(A) The Service's premise and what the statute asks

The Service's letters state for this quarter that no orders were in force:

Our records indicate there were no government orders related to COVID-19 in effect during the quarter(s) you claimed ERC which could have fully or partially suspended your trade or business.

The statute asks whether, during the quarter beginning July 1, 2021 and ending September 30, 2021, the operation of the trade or business was fully or partially suspended due to orders from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19. Congress re-enacted that clause on March 11, 2021 for exactly this quarter, with knowledge of the Notice and of the orders then in force, and preserved it when it terminated the fourth quarter on November 15, 2021.⁸⁹ For this industry the quarter was not a quarter of residue. It was the quarter in which the Federal Government's only COVID-19 emergency standard bound every hospital workplace, in which the hospital's census remained a federal condition of participation, in which thirteen jurisdictions ordered the vaccination of the hospital workforce by dates inside or immediately after the quarter, in which three States forbade public hospitals or all employers to do so and two more fixed by statute or order what a hospital could require of its visitors and patients, in which the Delta wave produced crisis standards of care and hospital-capacity orders, and in which Tri-State's own Proclamation 20-24.2 remained in force. The inventory in (B) lists only instruments in force on some day of the quarter; the closing paragraph names the expired instruments on which the analysis does not rest.

(B) The instruments in force July 1 to September 30, 2021: the federal standard and its enforcement

B-1. Occupational Safety and Health Administration, Occupational Exposure to COVID-19; Emergency Temporary Standard, 29 C.F.R. part 1910, subpart U, §§ 1910.502-1910.509, 86 Fed. Reg. 32376 (June 21, 2021). Issued under 29 U.S.C. § 655(c); effective June 21, 2021; compliance required by July 6, 2021 for every provision except barriers, ventilation and training, and by July 21, 2021 for those. Operative clause: "this section applies to all settings where any employee provides healthcare services or healthcare support services," excepting only "well-defined hospital ambulatory care settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter"; the standard requires a written COVID-19 plan, patient screening and management, personal protective equipment, the limitation of aerosol-generating procedures on suspected or confirmed patients to an airborne infection isolation room, physical distancing, physical barriers, employee screening and notification, mandatory medical removal of exposed and infected employees with medical removal protection benefits, paid leave for vaccination, training, a COVID-19 log and reporting. Enforcement: citations and civil penalties under sections 9 and 17 of the Act; inspections under Direction DIR 2021-02 (June 28, 2021); programmed inspections under the revised National Emphasis Program, Direction DIR 2021-03 (July 7, 2021), whose Appendix A names hospitals first among the target industries and which ran "for no more than 12 months"; anti-retaliation under § 1910.502(o). In force July 1 and September 30, 2021; withdrawn in its non-recordkeeping provisions on December 27, 2021. Functions: IC in every particular; ED (screening and triage); IP (isolation rooms and cohorting); SX (aerosol-generating procedure limits); OC (screening and barriers); HR (training and medical removal); WF (medical removal of exposed staff); OF (administrative areas, with only off-site billing excepted); SC (respirator supply); VS (screening of every non-employee) (Ex. SEC-01-001; Ex. SEC-01-002; Ex. SEC-01-003; Ex. FED-080; Ex. FED-081; Ex. FED-083; Ex. FED-084).⁹⁰ The standard is the controlling federal instrument of the quarter for this industry. The Office of Chief Counsel's memorandum on OSHA communications excludes it by name from its conclusion that OSHA guidance is not an order.⁹¹

The federal reporting condition, waivers and Medicare rules

B-2. CMS-3401-IFC, 42 C.F.R. § 482.42(e). Issued under sections 1861(e)(9), 1866 and 1902 of the Social Security Act and section 18115 of the CARES Act; effective September 2, 2020; "in effect during and [until the] end of the PHE," which the Secretary renewed on July 19, 2021 (Ex. FED-016). Operative clause: "the hospital must report information in accordance with a frequency, and in a standardized format, as specified by the Secretary during the PHE for COVID-19," the fields including beds, intensive-care occupancy, ventilators, protective-equipment days on hand and staffing shortages. Enforcement: condition of participation; termination from Medicare after notice. In force every day of the quarter. Functions: IP, OC, SC, OF, WF, ED (Ex. SEC-01-004; Ex. FED-092).⁹² B-3. CMS, COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers, as updated May 24, 2021, under section 1135, continued "through the end of the emergency declaration": the EMTALA, verbal-order, discharge-planning, medical-staff, physical-environment and surge-site waivers defined what every hospital could lawfully do off campus on every day of the quarter; with them, CMS's interim final rules of 2020 (Ex. FED-090; Ex. FED-091; Ex. FED-093), its survey memoranda (Ex. FED-099; Ex. FED-165; Ex. FED-166), its nursing-home visitation memorandum as revised April 27, 2021 (Ex. FED-156), its long-term-care vaccination rule (Ex. FED-094; Ex. FED-163), the Office for Civil Rights' telehealth discretion (Ex. FED-194) and FEMA's cost-share memorandum of August 17, 2021 (Ex. FED-009) governed the hospital's terms of operation throughout. Functions: IP, ED, HR, OF, CB, OC (Ex. SEC-01-010; Ex. FED-160).⁹³ The hospital staff vaccination rule CMS announced on September 9, 2021 issued November 5, 2021 and is post-period; the announcement is cited only as context for staffing decisions taken in the quarter (Ex. SEC-01-017; Ex. SEC-01-018).

The federal workforce, contractor and supply instruments

B-4. Executive Order 13991 (January 20, 2021) imposed workplace infection-prevention and exposure-control requirements, masks and distancing among them, on federal employees, on-site contractors and "all persons in Federal buildings" on every day of the quarter, and the mask, distancing, visitor-minimization and mission-critical-travel provisions of OMB Memorandum M-21-15 remained in force from July 1 to July 29, 2021, when the Safer Federal Workforce Task Force's Agency Model Safety Principles superseded and carried them (Ex. FED-060; Ex. FED-270; Ex. FED-272); the Task Force's Model Safety Principles (revised July 29, 2021) required every onsite contractor to attest to vaccination status or to mask, distance and test weekly during the quarter itself (Ex. FED-272; Ex. FED-278); Executive Order 14042 (September 9, 2021) directed every agency to include, in covered contracts entered into, extended, renewed or optioned on or after October 15, 2021, a clause requiring compliance with the Task Force's guidance, issued September 24, 2021, and so fixed from September 9 the terms on which every health system holding or seeking a Department of Veterans Affairs, Department of Defense or other federal service contract would operate; it is treated as the Federal Government's own statement, inside the quarter, that the emergency it recites remained in effect, and as the instrument under which every such health system began its compliance planning in September 2021, the contract clause itself applying from October 15 (Ex. SEC-01-016; Ex. FED-063; Ex. FED-275; Ex. FED-274); Executive Order 14043 required vaccination of the federal workforce (Ex. FED-064); the Department of Veterans Affairs mandated vaccination of its medical employees on July 26, 2021 with eight weeks to comply (Ex. ECO-B-089; Ex. AGY-FED-HEALTH-OTHER-069; Ex. AGY-FED-HEALTH-OTHER-070); and the Secretary of Defense's personnel-movement memorandum governed every military treatment facility and TRICARE counterparty (Ex. FED-280). Functions: HR, WF, IC, OF, CB.⁹⁴ B-5. HHS's designation of scarce materials, extended July 7, 2021 to November 15, 2021, kept respirators, masks, gloves and gowns under the anti-hoarding provisions of the Defense Production Act on every day of the quarter (Ex. ECO-A-071; Ex. FED-074; Ex. FED-071). Function: SC.⁹⁵ B-6. The CDC's conveyance order, an airborne-transmission control that made face coverings a condition of carriage, in force every day and enforced by TSA Security Directive 1582/84-21-01A to September 13 and -01B from September 14, 2021, conditioned every hospital worker's commute by bus, rail and air (Ex. FED-020; Ex. FED-051; Ex. FED-052; Ex. FED-056; Ex. FED-057; Ex. FED-061); Proclamations 9984, 9992, 10143 and 10199 suspended entry from China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa and India on every day of the quarter, all revoked only November 8, 2021 (Ex. FED-200; Ex. FED-201; Ex. FED-207; Ex. FED-208; Ex. FED-209); the land-border notifications of June 23, July 22, August 23 and September 22, 2021 confined Canada and Mexico crossings to essential travel (Ex. FED-232; Ex. FED-233; Ex. FED-234; Ex. FED-235; Ex. FED-255; Ex. FED-256; Ex. FED-257; Ex. FED-258); and the Title 42 orders and the inbound-testing order were in force every day (Ex. FED-037; Ex. FED-038; Ex. FED-042). Functions: WF, HR, SC, CB.⁹⁶

The State workforce vaccination orders

B-7. Thirteen jurisdictions ordered the vaccination of the hospital workforce by instruments in force in the quarter, each with verification, exemption, testing and separation duties that fell on the hospital by dates inside or immediately after the quarter. California: State Public Health Officer Order of July 26, 2021, effective 12:01 a.m. August 9 with full compliance by August 23, requiring every facility to "verify vaccine status of all workers" and to test unvaccinated workers twice weekly in acute care (Ex. CA-031; Ex. SEC-01-059); State Public Health Officer Order of August 5, 2021, requiring that "All workers who provide services or work in facilities described in subdivision (a) have their first dose of a one-dose regimen or their second dose of a two-dose regimen by September 30, 2021," with exemptions only on a declination form and twice-weekly testing and respirator use for exempt workers, enforced under Health and Safety Code §§ 120275 and 120295 and by All Facilities Letter 21-34 (Ex. CA-030; Ex. SEC-01-058; Ex. AGY-ST-HEALTH-SUBORDERS-092); and the order of August 19, 2021 for correctional health care workers (Ex. CA-038).⁹⁷ Washington: Proclamation 21-14 (August 9, 2021), prohibiting "Any individual or entity that operates a Health Care Setting from permitting a Health Care Provider to engage in work for the individual or entity as an employee, contractor, or volunteer after October 18, 2021 if the Health Care Provider has not been fully vaccinated," with "Acute care facilities, including, but not limited to, hospitals" named and the whole facility treated as a health care setting; amended August 20 and September 27, 2021; enforced as a gross misdemeanor under RCW 43.06.220(5) and by licensure (Ex. WA-077; Ex. WA-079; Ex. WA-087; Ex. SEC-01-055; Ex. SEC-01-056; Ex. SEC-01-109).⁹⁸ New York: 10 NYCRR § 2.61, emergency regulation filed and effective August 26, 2021: "Covered entities shall continuously require personnel to be fully vaccinated against COVID-19, with the first dose for current personnel received by September 27, 2021 for general hospitals and nursing homes," "personnel" meaning "all persons employed or affiliated with a covered entity, whether paid or unpaid," enforced under Public Health Law §§ 12 and 2806; the Commissioner's determination of August 27, 2021 under § 2.60 imposing the airborne-transmission control of universal face coverings in health care settings; the Department's FAQs of September 20, 2021; and 10 NYCRR Subpart 66-4 as readopted July 30, 2021 (Ex. NY-071; Ex. SEC-01-070; Ex. NY-073; Ex. NY-074; Ex. NY-078; Ex. NY-135).⁹⁹ New Jersey: Executive Order No. 252 (August 6, 2021), requiring every covered setting to "maintain a policy that requires covered workers to either provide adequate proof that they have been fully vaccinated or submit to COVID-19 testing at minimum one to two times weekly," effective September 7, 2021, enforced under N.J.S.A. App. A:9-49 and -50 and by licensure, with Executive Directives 20-013, 20-026 and 21-001 continued by P.L. 2021, c. 103 (Ex. NJ-056; Ex. SEC-01-044; Ex. NJ-066; Ex. NJ-074; Ex. NJ-078; Ex. NJ-053).¹⁰⁰ Illinois: Executive Order 2021-20 (August 26, 2021), requiring every health care worker's first dose by September 5, 2021 and weekly testing of the unvaccinated, restated with a September 19 deadline by Executive Order 2021-22 (September 3, 2021) (Ex. SEC-01-078; Ex. SEC-01-079). Rhode Island: 216-RICR-20-15-8, emergency regulation effective August 17, 2021, requiring immunization of "all health care workers and health care providers" by October 1, 2021, enforced by licensure (Ex. RI-072; Ex. SEC-01-085). Maine: 10-144 C.M.R. ch. 264, emergency rule adopted August 12, 2021, adding COVID-19 to the immunizations required of every employee of a designated health care facility, EMS organization and dental practice, requiring the final dose by September 17, 2021 for full vaccination by October 1, excluding the unimmunized employee from the worksite, with enforcement deferred by notice to October 29, 2021 and no religious or philosophical exemption (the post-period opinion in Does 1-6 v. Mills, Ex. ME-062 and Ex. SEC-01-111, is cited only as a public record describing the rule). Oregon: OAR 333-019-1010, temporary rule filed August 5, 2021 requiring every health care worker to be vaccinated or tested weekly, with full compliance by September 30, 2021, replaced August 25, 2021 by the rule requiring documentation of full vaccination or an exception by October 18, 2021 (Ex. OR-046; Ex. OR-051). Colorado: 6 CCR 1011-1, Chapter 2, Part 12, emergency rule of the State Board of Health adopted August 30, 2021, requiring every licensed facility's personnel to be vaccinated with a first dose by September 30 and fully by October 31, 2021 (Ex. CO-055). Maryland: MDH Orders 2021-08-05-01 (State congregate facilities), 2021-08-18-01 (proof of a first dose from every hospital and nursing home staff member by September 1, 2021) and 2021-09-08-01 (Ex. ECO-B-056; Ex. MD-060). Delaware: Emergency Secretary's Orders signed September 10, 2021 amending the hospital, home-health and personal-assistance licensing standards to require vaccination or weekly testing of every staff member, vendor and volunteer, effective September 30, 2021, announced August 12, 2021 (Ex. DE-047; Ex. DE-046; Ex. DE-055; Ex. DE-064; Ex. AGY-ST-HEALTH-SUBORDERS-041). New Mexico: the Public Health Emergency Order of August 17, 2021, effective on signing, providing that "All hospital workers, congregate care facility workers, and employees of the Office of the Governor ... are required to be fully vaccinated against COVID-19 unless they qualify for an exemption," each such worker to "Receive the first dose of a COVID-19 vaccine within 10 days of the effective date of this Order and their second dose within 40 days of their first dose," that is, a first dose by August 27, 2021, exempt workers to "Provide adequate proof that the individual has tested negative for COVID-19 on a weekly basis" and to wear face coverings indoors as an exposure control, "contractual staff not employed by the hospital" within its reach, and enforceable by civil administrative penalties under NMSA 1978, Section 12-10A-19; and the Amended Order of September 15, 2021, effective that day, restating those terms and requiring every hospital to report to the Department of Health the numbers of its workers subject to the order, fully vaccinated, partially vaccinated, unvaccinated and exempt (Ex. NM-068; Ex. NM-071). The District of Columbia: the first-dose deadline of September 30, 2021 for every health care worker announced August 16, 2021 under Mayor's Order 2021-099 of August 10, 2021 (Ex. SEC-04-059; Ex. DC-075).¹⁰¹ The metros added Denver's order of August 2, 2021 requiring the personnel of hospitals and clinical settings and their onsite contractors "to be fully vaccinated by September 30, 2021" (Ex. MET-DEN-023; Ex. MET-DEN-025), Philadelphia's regulation of August 12, 2021 barring unvaccinated health care workers from work after October 15, 2021 (Ex. MET-PHL-021; Ex. MET-PHL-022), New York City's public hospital rule (Ex. MET-NYC-035), San Francisco's Order C19-07y § 6 (Ex. MET-SFO-008), Marion County's Health and Hospital Corporation deadline of September 20, 2021 (Ex. MET-IND-093), New Orleans's contractor rule from August 30, 2021 (Ex. MET-MSY-032) and Marin County's first-responder order effective September 15, 2021 (Ex. MET-SFO-050); Puerto Rico's Executive Order OE-2021-062 imposed vaccination-or-testing on health care workers from August 16, 2021 (Ex. AGY-TERRITORIES-033); and State-facility and State-employee rules bound public hospital workforces in Vermont (Ex. VT-083; Ex. VT-084) and, from September 1, 2021, North Carolina's Cabinet-agency health facilities (Executive Order 224, July 29, 2021, § 4.1), while the State-facility requirements of Pennsylvania, Kentucky, New York and Delaware are described here by category.¹⁰² Functions: HR, WF, IC, OF, CB. Each of these orders compelled every hospital in its jurisdiction, during the quarter, to build and run a verification, exemption, testing and separation program for its entire workforce and, at the deadlines of August 27 (New Mexico, the first dose), September 1 (Maryland), September 7 (New Jersey), September 15 (New Mexico, the report of its workers' vaccination counts), September 19 (Illinois), September 27 (New York) and September 30 (California, Colorado, Delaware, the District of Columbia and Denver) and at the deadlines of October 1 (Rhode Island and Maine) and October 18 (Oregon and Washington) that followed the quarter's end by days, to remove from work every worker who had not complied.

The State orders that ran the other way

B-8. Texas's GA-38 (July 29, 2021) provided that no governmental entity could compel any individual to receive a COVID-19 vaccine administered under an emergency use authorization, exempted "government-owned hospitals" from its bar on face-covering requirements, and required daily test-result reporting; GA-39 (August 25, 2021) extended the vaccination prohibition to fully approved vaccines and barred "vaccine passports"; the disaster declaration was renewed on August 29, 2021 (Ex. SEC-01-051; Ex. SEC-01-052; Ex. TX-001; Ex. TX-038). Montana's House Bill 702 made it "an unlawful discriminatory practice" for an employer to refuse employment or to discriminate "based on the person's vaccination status," so that no Montana hospital could condition employment on vaccination (Ex. SEC-01-081). Florida's section 381.00316 forbade any business to require patrons or customers to provide vaccination documentation, on a $5,000 fine per violation, from July 1, 2021 (Ex. SEC-01-082). Arkansas's Act 977, effective July 28, 2021, forbade the State and its political subdivisions to mandate vaccination as a condition of employment, education, entry or services (Ex. SEC-01-083). Georgia's Executive Order 05.25.21.01 forbade State agencies, service providers and State property to require proof of vaccination (Ex. SEC-01-084). Functions: HR, VS, CB, IC. A hospital in these States operated its visitation, admission and staffing functions under orders that fixed what it could not require, in the same quarter in which hospitals elsewhere operated under orders that fixed what it must.¹⁰³

The State visitation, infection-prevention and health-care-setting orders

B-9. California's State Public Health Officer Order of August 5, 2021 (Requirements for Visitors in Acute Health Care and Long-Term Care Settings), effective August 11, 2021: "Indoor visitation shall be permitted only in accordance with this Order," the facility to "verify visitors are fully vaccinated" or verify a negative test within seventy-two hours, and to "have a plan in place for tracking verified visitor vaccination status" (Ex. SEC-01-060); the CDPH face-covering guidance of July 28, 2021, the State's statement of the airborne-transmission control of universal masking in every health care setting, described here as guidance (Ex. AGY-ST-HEALTH-SUBORDERS-110). New York's Commissioner's determination of August 27, 2021 under 10 NYCRR § 2.60, imposing universal face coverings in health care settings as an airborne-transmission control (Ex. NY-073; Ex. NY-074). Oregon's OAR 333-019-1011 (August 20, 2021), imposing the airborne-transmission control of face coverings on every individual in every health care setting, with the operator responsible for compliance (Ex. SEC-01-110), and its statewide indoor rule of August 13, 2021. Washington's Secretary of Health Order 20-03.4 (issued August 19, effective August 23, 2021) reimposing the face-covering control in every indoor public space (Ex. WA-078), with Proclamation 20-24.2 and the Proclamation 20-66 long-term-care series continuing (Ex. WA-049; Ex. WA-057). Massachusetts's order keeping the infection-prevention requirement of face coverings in health care and congregate settings from May 29, 2021 under the modified public health emergency (Ex. MA-050; Ex. MA-049), and Public Health Emergency Order No. 2021-4 (August 4, 2021) requiring vaccination of long-term-care personnel by October 10, 2021 (Ex. MA-067). Connecticut's Department of Public Health order of August 7, 2021 imposing universal masking, as an airborne-transmission control, in listed settings including health care (Ex. CT-052). The statewide indoor face-covering orders of Nevada (from July 30), Louisiana (from August 4), New Mexico (from August 20), Illinois (from August 30) and the District of Columbia (from July 31), airborne-transmission controls imposed on every indoor public space and workplace, each reaching every hospital as a place of public accommodation and an employer (Ex. NV-041; Louisiana's Proclamation 137 JBE 2021; New Mexico's indoor face-covering order; Ex. SEC-01-078; Ex. DC-057). The nursing-home visitation, testing and reporting orders of Michigan, Louisiana, Arkansas, Ohio, Idaho and Colorado, in force throughout, on every hospital discharge (the Michigan MDHHS order of May 21, 2021; Ex. LA-050; Ex. AR-068; Ex. OH-049; Ex. OH-071; Ex. ID-051; Ex. CO-002). Functions: VS, IC, ED, OC, CB, OF.¹⁰⁴

The State hospital-capacity, reporting and crisis-standards orders

B-10. Pennsylvania's Order Requiring Reduction of Elective Procedures in Regions with Low Acute Care Treatment Capacity remained in force from July 1 until the Secretary terminated it on August 23, 2021 (Ex. PA-025; Ex. PA-101); its hospital daily reporting order, in force since March 24, 2020, was amended on August 13, 2021, effective August 18, to require daily reporting of COVID-19 admissions, the vaccination status of admitted patients and every COVID-19-attributed hospitalization through PA-NEDSS (Ex. PA-041; Ex. PA-044); and Act 21 of 2021 governed the Commonwealth's regulatory suspensions to September 30, 2021.¹⁰⁵ Maryland's MDH Order 2021-06-15-03 carried hospital surge-capacity and testing duties to December 31, 2021, and the Governor's nursing-home order ran to August 15, 2021 (Ex. MD-043). Rhode Island's Executive Order 21-91 (August 26, 2021) restated the hospital-capacity and certificate-of-need suspensions in force since April 2020 (Ex. RI-058; Ex. RI-013). Tennessee's Executive Order No. 83 (August 6, 2021), reciting that "hospitalizations are increasing as COVID-19 variants continue to increase," suspended licensure and inspection rules to permit out-of-State professionals to practice and licensed institutions to add capacity, in force to October 5, 2021 (Ex. SEC-01-075; Ex. TN-034). Alabama's Governor proclaimed a state of emergency on August 13, 2021 suspending regulations to expand hospital capacity and staffing (Ex. AL-052). Louisiana's Proclamation 137 JBE 2021 imposed the airborne-transmission control of face coverings in every indoor space from August 4, 2021, and the Louisiana Department of Insurance's Emergency Rule 46, effective 12:01 a.m. on August 9, 2021, required every health insurance issuer to cover care at step-down facilities for patients transferred out of any acute care hospital whose inpatient occupancy exceeded 85 percent, an order on the hospital's payers that fixed the terms of every surge transfer. Indiana's Executive Order 21-24 (September 1, 2021, effective September 2) directed every hospital to implement evidence-based capacity criteria, to reprioritize or postpone non-emergent surgeries or procedures where necessary and to report diversion status and staffing daily (Ex. IN-071), and Executive Order 21-19 gave executive-order force from August 1, 2021 to the Department of Health's control measures excluding infected and exposed workers from employment. Idaho's Governor activated the National Guard for the State's hospitals by Executive Order 2021-11 on August 31, 2021 (Ex. ID-030), and its Department of Health and Welfare activated Crisis Standards of Care under IDAPA 16.02.09 for the Panhandle and North Central Health Districts on September 7, 2021 at Kootenai Health's request and statewide on September 16, 2021 at St. Luke's request, altering the standard of care and the allocation of intensive care, staffing and elective capacity in every hospital in the State (Ex. SEC-01-100; Ex. ID-064; Ex. ID-052; Ex. ID-072; Ex. ID-062; Ex. ID-067). Alaska's Addendum No. 1 to the COVID-19 Public Health Emergency Order activated crisis standards of care on September 21, 2021 (Ex. AK-031; Ex. AK-092). Nebraska's Executive Order 21-12 of August 26, 2021, in which the Governor "hereby declare[d] a hospital capacity emergency exists" and suspended licensing, training and credentialing rules to add health care workforce capacity, ran to December 31, 2021 (Ex. NE-068). West Virginia's Executive Orders 28-20 and 30-20, requiring hospital capacity plans and protective-equipment sufficiency, remained in force under Executive Order 12-21, with twice-weekly testing of unvaccinated long-term-care staff under Executive Order 13-21 (Ex. WV-023; Ex. WV-024; Ex. WV-001; Ex. WV-064); Executive Order 23-21 (July 20, 2021) terminated the remaining suspensions effective October 1, 2021 and is cited for that date (Ex. WV-067). Nevada's Directive 011 as amended by Directive 046 on July 20, 2021 governed licensing and crisis standards (Ex. NV-013; Ex. NV-040), Nevada OSHA's adoption of the federal Healthcare Emergency Temporary Standard bound every Nevada health-care workplace from July 1, 2021 (Ex. AGY-ST-LABOR-WORKPLACE-040), and the State Board of Health's emergency regulation of September 10, 2021 required vaccination of State health-care and detention workers by November 1 (Ex. NV-056; Ex. NV-057). Ohio's Director of Health's COVID-19 reporting order remained in force on every day of the quarter (Ex. OH-072). New Jersey's directives, Washington's Proclamation 20-32 waivers, Rhode Island's suspensions, Indiana's licensing and telemedicine provisions, Connecticut's certificate-of-need waiver and Kentucky's Senate Bill 2 of September 10, 2021 completed the standing State layer (Ex. NJ-084; Ex. NJ-085; Ex. WA-023; Ex. IN-011; Ex. IN-069; Ex. CT-064; Ex. KY-061). The emergency declarations under which those orders issued and were continued remained in force throughout the quarter in Texas (Ex. TX-001; Ex. TX-038), Arizona (Ex. AZ-001; Ex. AZ-044, keeping Executive Orders 2020-12, 2021-05 and 2021-06 in force to September 29, 2021, Ex. AZ-037), Colorado (Ex. CO-001 to July 8, then the Disaster Recovery Orders, Ex. CO-043 through Ex. CO-046), Delaware (the public health emergency of July 12, 2021, Ex. DE-041), Georgia (Ex. GA-041; Ex. GA-042; Ex. GA-044), Hawaii (the Twenty-First Proclamation to August 6 and the Emergency Proclamation of August 5, 2021), Iowa (Ex. IA-041), Massachusetts (the chapter 17 public health emergency, Ex. MA-049), North Carolina (Ex. NC-001), West Virginia (Ex. WV-001) and Tennessee (Ex. TN-034; Ex. SEC-01-075 from August 6), and were newly declared in Arkansas (July 29 to September 27, 2021, Ex. AR-017), Alabama (August 13, 2021, Ex. AL-052), Missouri (the health-care staffing emergency from August 27, 2021, Ex. MO-020, succeeding the general emergency that ran to that day, Ex. MO-018) and Nebraska (the hospital-capacity emergency of August 26, 2021, Ex. NE-068). Maine's State of Civil Emergency expired at midnight on June 30, 2021 (Ex. ME-059) and Executive Order 40 FY 20/21 carried named orders to August 30, September 30 and December 31, 2021, while the Department of Health and Human Services' public health emergency of July 1, 2021, recited in the immunization rule, carried the quarter; Nebraska's general emergency ended June 30, 2021 (Ex. NE-067) and its Executive Order 20-12 ran to August 27 (Ex. NE-050); Oklahoma's State emergency had ended May 4, 2021, and the City of Stillwater declared a hospital-capacity emergency from September 3 to September 20, 2021 on the finding that its medical center had no staffed intensive-care or medical beds and was diverting emergency patients (Ex. OK-089); Hawaii's Executive Orders 21-06 and 21-07 governed health care facilities and access to State property from September 1 and 13, 2021 (Ex. HI-027); and Colorado's Sixth Amended Public Health Order 20-38 governed health care settings from September 1, 2021 (Ex. CO-091). The declarations are treated as the instruments under which the quarter's hospital orders issued or, where they carried operative hospital terms, for those terms.¹⁰⁶ Functions: SX, IP, ED, HR, OF, WF, SC, CB.

The metros

B-11. In addition to the vaccination orders in B-7, the metro layer reached hospitals in the quarter by orders imposing infection-prevention and exposure controls on health care settings, universal masking among them, by orders on isolation and quarantine, and by orders on the hospital's patients and events. Los Angeles County imposed universal indoor face coverings, an airborne-transmission control on every indoor workplace and public space, from July 17, 2021 (Ex. MET-LA-018); Sacramento County imposed the same control, requiring face coverings "regardless of vaccination status ... in all indoor public settings, venues, gatherings, and workplaces" from July 30, and relayed the State's July 26 health care worker order to every health care employer on July 27 (Ex. MET-SAC-015; Ex. MET-SAC-018); San Diego County's Quarantine Order as revised July 22, 2021 confined every unvaccinated close contact and prescribed return-to-work conditions for health care workers (Ex. MET-SAN-024; Ex. MET-SAN-023); San Bernardino County's order of June 15, 2021 continued the entry-screening and face-covering controls in every licensed facility (Ex. MET-RIV-031); King County's isolation order and facilities order continued (Ex. MET-SEA-004; Ex. MET-SEA-050; Ex. MET-SEA-048); St. Louis County's quarantine, residential-facility, rapid-notification and non-congregate orders continued and the City of St. Louis imposed the face-covering control in every indoor public space from July 26 (Ex. MET-STL-067; Ex. MET-STL-056; Ex. MET-STL-083; Ex. MET-STL-098; Ex. MET-STL-021); New Orleans imposed the face-covering control in all health care facilities throughout and in every indoor space from July 31, and conditioned every indoor venue on proof of vaccination or a negative test from August 16 (Ex. MET-MSY-027; Ex. MET-MSY-029); Baltimore City imposed the same airborne-transmission control on every person obtaining health care services by order dated and effective August 10 (Ex. MET-BAL-017); Columbus required, as an infection-prevention control, CDC-standard face coverings in health care facilities from September 10 (Ex. MET-CMH-048); Chicago and Cook County imposed universal indoor face coverings, an airborne-transmission control, on every business from August 20 and 23 (Ex. MET-CHI-026; Ex. MET-CHI-041); Dallas County required every commercial entity to adopt a written Health and Safety Policy, a workplace infection-prevention and exposure-control requirement with universal indoor masking among its terms, from August 11 (Ex. MET-DFW-028); Harris County and Houston issued their August 2021 orders (Ex. MET-HOU-038); Clark County imposed the face-covering control on every employee of every indoor public-facing business from July 22, its Commissioners reciting that hospitals could not be allowed to become more crowded (Ex. MET-LAS-006; Ex. MET-LAS-009); Allegheny County's isolation and quarantine directions required ten days' isolation "regardless of your vaccination status" (Ex. MET-PIT-014); Orange County, Florida declared its emergency on July 28, 2021 on findings that hospitals held 4.5 times their May 27 COVID-19 census and that providers "have had to turn down ... patients seeking elective procedures" (Ex. MET-ORL-013); Salt Lake City's order of August 20, 2021 recited intensive-care occupancy above eighty-seven percent (Ex. MET-SLC-030); Honolulu's Safe Access O'ahu and Safe O'ahu Response Plan governed every venue and gathering (Ex. MET-HNL-035; Ex. MET-HNL-037); the face-covering and proof-of-vaccination orders of New York City, Philadelphia, Boston, the Washington suburbs, Savannah, San Francisco, Seattle, Denver, Minneapolis and Saint Paul, Kansas City, Memphis and Louisville, exposure controls attached to every indoor venue, conditioned the hospital's community programs, events and public spaces (Ex. MET-NYC-017; Ex. MET-PHL-019; Ex. MET-BOS-013; Ex. MET-DCM-023; Ex. MET-ATL-016; Ex. MET-SFO-011; Ex. MET-SEA-002; Ex. MET-DEN-033; Ex. MET-MSP-041; Ex. MET-KC-045; Ex. MET-BNA-076; Ex. MET-SDF-017); and the administrative orders of the Maricopa County and Hamilton County courts imposed the face-covering control in every courthouse the hospital's legal function used (Ex. MET-PHX-016; Ex. MET-CIN-007).¹⁰⁷ Functions: IC, VS, WF, OC, MK, CB.

The workforce and counterparty orders

B-12. The school and child-care infection-prevention orders of August and September 2021, universal masking among their controls, governed the children of every hospital's workforce, Delaware's emergency amendment of 16 Del. Admin. C. § 4202 imposing universal masking on every student, staff member and visitor in every K-12 school and in State congregate settings from August 16, 2021 among them (Ex. MET-DEN-024; Ex. MET-DET-013; Ex. MET-DET-015; Ex. DE-044; Ex. DE-045; Ex. DE-066; Ex. MET-SLC-030); the paid-leave laws of New York, New Jersey and Colorado compelled every hospital to pay quarantined staff not to work (Ex. AGY-ST-LABOR-WORKPLACE-003; Ex. AGY-ST-LABOR-WORKPLACE-004; Ex. AGY-ST-LABOR-WORKPLACE-005); the isolation and quarantine orders of the metros and the isolation and quarantine directions of New Hampshire's Department of Health and Human Services removed exposed staff (Ex. MET-SAN-024; Ex. MET-SEA-050; Ex. MET-STL-067; Ex. NH-064); Michigan's COVID-19 Employment Rights Act, 2020 PA 238, retroactive to March 1, 2020, barred every symptomatic, positive or exposed employee from reporting to work until stated conditions were met, and Indiana's Department of Health control measures, given executive-order force from August 1, 2021, excluded infected and exposed workers from employment; the CDC's eviction orders to July 31 and from August 3 and the labor-agency standards of Virginia, Oregon, Washington and California bound the hospital as an employer (Ex. FED-025; Ex. FED-026; Ex. AGY-ST-LABOR-WORKPLACE-055); and CMS's long-term-care rules and the States' residential-care orders conditioned every discharge (Ex. FED-156; Ex. FED-094; Ex. LA-050). Functions: WF, CB, HR.¹⁰⁸

(C) How they reached the functions

IC: every hospital wrote and ran the federal standard's COVID-19 plan, screened every entrant, held aerosol-generating procedures to isolation rooms, removed exposed staff with pay and trained its workforce by July 21; in thirteen jurisdictions it verified, exempted and tested its workforce and separated the unvaccinated on the dates the orders fixed. HR and WF: the verification, exemption, testing and separation programs of B-7 ran in every hospital in California, Washington, New York, New Jersey, Illinois, Rhode Island, Maine, Oregon, Colorado, Maryland, Delaware, New Mexico and the District of Columbia during the quarter, with deadlines of August 27 and September 1, 7, 15, 19, 27 and 30 inside the quarter and October 1 and 18 immediately after it; in Texas, Montana and Arkansas public hospitals or all employers were forbidden to run them, and Florida and Georgia fixed what a hospital could require of its visitors and patients; the entry proclamations kept foreign-trained clinicians out on every day; the conveyance order, an airborne-transmission control, made face coverings a condition of every commute. IP and OF: the census, ventilator, supply and staffing report went to CMS every day on pain of termination, to Pennsylvania with new fields from August 18 and to Indiana daily from September 2; crisis standards of care governed every Idaho and Alaska hospital from September 7 and 21; Maryland's surge duties, Rhode Island's suspensions, Tennessee's, Alabama's and Nebraska's capacity orders and Indiana's capacity directive governed, and Louisiana's Insurance Commissioner fixed the payer terms of every surge transfer. SX: Pennsylvania's reduction order to August 23; Washington's Proclamation 20-24.2 throughout; the federal standard's isolation-room rule on every aerosol-generating procedure; the crisis standards of Idaho and Alaska. VS: California's visitor order from August 11; the health-care-setting face-covering controls of New York, Oregon, Washington, Massachusetts and Connecticut; the metro face-covering and exposure-control orders; the vaccination-documentation bans of Florida, Texas, Arkansas and Georgia. ED and OC: screening, barriers and distancing under the federal standard at every intake; the quarantine orders' return-to-work rules. SC: the scarce-materials designation through November 15. CB: the nursing-home vaccination, visitation and testing rules on every discharge. MK: the masked-entry and proof-of-vaccination conditions the metros attached to every event.

(D) The continuing-suspension analysis

The clause asks whether the operation "is fully or partially suspended during the calendar quarter"; "during the calendar quarter" modifies "suspended," and Congress did not write "orders in effect during the quarter." Tri-State defines a suspension to include a "delay" and holds causation to be but-for. The Notice recognizes both halves of the point: Q&A-22 makes an employer suspended for part of a quarter eligible for the whole quarter, and Q&A-16 recognizes that "a significant delay (for example, beyond 2 weeks)" in moving between modes of operation is itself a partial suspension.¹⁰⁹ Four pathways carry the suspension of this industry into the third quarter of 2021. First, the instruments in (B) were in force on every day of the quarter and were themselves orders limiting commerce, travel and group meetings addressed to hospitals. Second, the orders of March 2020 through June 2021 compelled this industry to dismantle its elective, procedural, visitation and staffing operations, and the orders' own step dates show that the dismantling was not restored on July 1, 2021: Texas cancelled every elective procedure on March 22, 2020, permitted resumption from April 22 only on a twenty-five percent reserve, held a fifteen percent reserve from May 1 and a ten percent reserve from September 17, 2020, re-cancelled in four counties from June 26 and in more than one hundred from June 30, and ran a regional trigger from September 17, 2020 to March 10, 2021 (Ex. TX-004; Ex. TX-009; Ex. TX-012; Ex. TX-020; Ex. TX-024); Pennsylvania cut elective procedures by half on regional notice from November 23, 2020 to August 23, 2021 (Ex. PA-025; Ex. PA-101); New Jersey suspended every elective procedure from March 27 to May 26, 2020 and governed every procedure since by directives continued to January 11, 2022 (Ex. NJ-006; Ex. NJ-016; Ex. NJ-084; Ex. NJ-053); Washington prohibited non-urgent procedures from March 19 to May 18, 2020, conditioned them thereafter and replaced the conditions on December 3, 2020 with a proclamation in force through the quarter (Ex. WA-015; Ex. WA-032; Ex. WA-049); Minnesota's conditions ran to May 27, 2021 and Oregon's to June 30, 2021 (Ex. SEC-01-067; Ex. SEC-01-069); Kentucky's ran to June 11, 2021 (Ex. KY-029); Maryland's surge duties ran to December 31, 2021; Massachusetts's second elective order ran to March 1, 2021 and Indiana's to January 3, 2021 with reprioritization to January 31 (Ex. MA-065; Ex. MA-066; Ex. IN-048; Ex. IN-051); California's surge order ran to February 5, 2021 (Ex. CA-026); visitation was barred in March 2020 and restored by phased directive through 2021 (Ex. MI-003; Ex. NJ-071; Ex. NJ-074; Ex. NJ-078; Ex. MA-057; Ex. AK-007); and the surgical backlog those orders created was performed, if at all, in the quarters that followed, under the reserves, triggers, isolation-room rules and staffing orders then in force. An operation ordered suspended through June 30 had not been restored on July 1; the orders' own step dates fix the arithmetic, and the interconnected-economy section states it. Third, the counterparties on which each function depends were themselves under the orders in (B), so that the industry's discharges, supplies, referrals and commutes were interrupted by orders addressed to others in the sense Q&A-12 recognizes and the United States has admitted. Fourth, the federal standard, the reporting condition, the waiver terms and the conveyance and entry orders were in force on every day and reached every hospital in the industry.¹¹⁰

(E) The answers to the Service's positions for the quarter

That no orders were in effect: the instruments in (B) were in effect, with dates, and the Service's sentence describes a quarter that did not occur. That the industry was "essential": the designation permitted the emergency department to operate; it exempted no hospital from the federal standard, the reporting condition, the vaccination orders, the visitor orders or the crisis standards, and the statute does not use the word. That the industry could telework: an operating room, an intensive care unit and an emergency department are the "physical work space" the Notice's own factor (3) describes, and telehealth was a compelled modification of the outpatient function on federal terms. That the orders reached customers, not the business: the federal standard, the reporting condition, the vaccination orders and the visitor orders reached the hospital by name. That the measures were voluntary: a written COVID-19 plan adopted because 29 C.F.R. § 1910.502(c) required it, a census reported because § 482.42(e) required it and a nurse separated on September 27 because 10 NYCRR § 2.61 required it are not voluntary, and Tri-State sustained a hospital's pleading to that effect and held the compelled protocols to be the order's effects. That the effect was nominal: an industry whose entire workforce was verified, tested or separated by order in thirteen jurisdictions, whose every workplace ran under a federal emergency standard, and whose census was a condition of its Medicare participation had more than a nominal portion of its operations delayed, interrupted or terminated, and the ten percent figure is, by the United States' own account, a safe harbor and not a floor. That the orders had lifted: the orders in (B) had not; the orders that had lifted are named below.¹¹¹

(F) The finding

During the calendar quarter beginning July 1, 2021 and ending September 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19, namely the federal Healthcare Emergency Temporary Standard and its enforcement directives (Ex. SEC-01-001; Ex. SEC-01-002; Ex. SEC-01-003), the hospital reporting condition of participation and the section 1135 waiver terms under the renewed emergency (Ex. SEC-01-004; Ex. SEC-01-010; Ex. FED-016), the federal workplace, contractor, supply, conveyance, entry and border orders (Ex. FED-060; Ex. FED-270; Ex. FED-272; Ex. ECO-A-071; Ex. FED-020; Ex. FED-051; Ex. FED-052; Ex. FED-207; Ex. FED-208; Ex. FED-233), the workforce vaccination orders of thirteen jurisdictions and their metros (Ex. CA-030; Ex. CA-031; Ex. WA-077; Ex. WA-079; Ex. WA-087; Ex. NY-071; Ex. NJ-056; Ex. SEC-01-078; Ex. SEC-01-079; Ex. RI-072; Maine's emergency rule of August 12, 2021; Ex. OR-046; Ex. OR-051; Ex. CO-055; Ex. ECO-B-056; Ex. MD-060; Ex. DE-047; Ex. NM-068; Ex. NM-071; Ex. DC-075; Ex. MET-DEN-023; Ex. MET-PHL-021), the anti-mandate orders and statutes (Ex. SEC-01-051; Ex. SEC-01-052; Ex. SEC-01-081; Ex. SEC-01-082; Ex. SEC-01-083; Ex. SEC-01-084), the visitation and health-care infection-prevention orders (Ex. SEC-01-060; Ex. NY-073; Ex. NY-074; Ex. SEC-01-110; Ex. WA-078; Ex. MA-050; Ex. CT-052; Ex. NV-041; Louisiana's Proclamation 137 JBE 2021; New Mexico's indoor face-covering order; Ex. DC-057), the hospital-capacity, reporting and crisis-standards orders (Ex. PA-025; Ex. PA-041; Ex. WA-049; MDH Order 2021-06-15-03; Ex. RI-058; Ex. SEC-01-075; Ex. AL-052; Ex. NE-068; Ex. IN-071; Ex. ID-030; Ex. SEC-01-100; Ex. ID-064; Ex. AK-031; Ex. WV-023), the metro orders (Ex. MET-LA-018; Ex. MET-SAC-015; Ex. MET-SAN-024; Ex. MET-RIV-031; Ex. MET-SEA-004; Ex. MET-STL-067; Ex. MET-MSY-027; Ex. MET-BAL-017; Ex. MET-CMH-048; Ex. MET-ORL-013), the workforce and counterparty orders (Ex. AGY-ST-LABOR-WORKPLACE-003; Indiana's control measures under Executive Order 21-19; Michigan's COVID-19 Employment Rights Act; Ex. FED-156; Ex. FED-094; the Michigan MDHHS order of May 21, 2021; Ex. LA-050) and the order on the hospital's payers (Louisiana's Emergency Rule 46), caused a temporary delay, interruption or termination of a more than nominal portion of the operations of employers in this industry throughout the United States.¹¹² They did so by binding every hospital workplace to a federal emergency standard enforced by programmed inspection, by making every hospital's census a condition of its Medicare participation, by compelling every hospital in thirteen jurisdictions to verify, test and separate its workforce by dates inside or immediately after the quarter and forbidding public hospitals or all employers in Texas, Montana and Arkansas to do so while Florida and Georgia fixed what a hospital could require of its visitors and patients, by conditioning every visitor and every discharge, by cutting Pennsylvania's elective procedures to August 23 and holding Washington's under Proclamation 20-24.2 throughout, by activating crisis standards of care in two States, and by imposing face-covering and exposure controls on every commute and every health care setting in the largest States.

What this analysis does not claim was in force

The analysis for the third quarter of 2021 rests on none of the following, each of which had expired before July 1, 2021: the spring 2020 elective-procedure orders (Ex. TX-004; Ex. NY-005; Ex. NJ-006; Ex. WA-015; Ex. FL-009; Ex. SEC-01-066; Ex. SEC-01-068; Ex. OH-007; Ex. MD-040; Ex. KY-009; Ex. SEC-01-071; Ex. SEC-01-080; Ex. AZ-004); Texas's capacity and regional-trigger orders, rescinded by GA-34 at 12:01 a.m. on March 10, 2021 (Ex. TX-009; Ex. TX-012; Ex. TX-020; Ex. TX-024; Ex. SEC-01-050; Ex. TX-026); the winter hospital orders of California (to February 5, 2021), Iowa (to February 7), New Mexico (to January 4), Mississippi (to March 3), Massachusetts (to March 1), Indiana (to January 31, with county measures to April 5) and Nebraska (to May 24) (Ex. CA-026; Ex. IA-034; Ex. NM-043; Ex. MA-061; Ex. MA-065; Ex. MA-066; Ex. IN-048; Ex. IN-051; Ex. IN-056; Ex. NE-023); the conditional-resumption regimes of Arizona (to April 1), Ohio (to April 5), New Hampshire (to May 7), Minnesota (to May 27), Kentucky (to June 11), Vermont (to June 15), Oregon and Montana (to June 30) (Ex. AZ-015; Ex. OH-027; Ex. NH-051; Ex. SEC-01-067; Ex. KY-029; Ex. SEC-01-069; Ex. MT-006); Alabama's hospital visitation rules (to May 31, 2021) (Ex. AL-051); Florida's Executive Order 21-81, lapsed June 26, 2021 and succeeded by section 381.00316 (Ex. FL-056); the 2020 hospital visitation bans of Michigan, Massachusetts, Alaska and San Diego County and New Hampshire's and New Jersey's long-term-care visitor prohibitions (Ex. MI-003; Ex. MA-057; Ex. AK-007; Ex. AK-017; Ex. MET-SAN-002; Ex. NH-001 ¶ 3; Ex. NJ-063); the FFCRA leave mandate (Ex. FED-170; Ex. ECO-B-002; Ex. ECO-B-003); the protective-equipment allocation rule (Ex. SEC-01-013; Ex. FED-075; Ex. FED-077; Ex. FED-078); Proclamation 10014, revoked February 24, 2021, and Proclamation 10052, expired March 31, 2021 (Ex. FED-210; Ex. FED-214; Ex. FED-211); TSA Security Directive 1582/84-21-01 (Ex. FED-050) and the twenty-five percent occupancy ceiling of OMB Memorandum M-21-15 (Ex. FED-270), lifted June 10, 2021 by M-21-25 (Ex. FED-271), M-21-15's mask, distancing, visitor and travel provisions having remained in force to July 29, 2021, when the Task Force's Model Safety Principles superseded and carried them (Ex. FED-272), and being relied on in B-4 for those days; the Department of Defense's elective postponement of the spring of 2020; the metro orders of 2020 and the first half of 2021 that the Library's metro records mark as ended; and the instruments dated after September 30, 2021, cited only for what they recite or for the dates on which they ended other instruments (Ex. SEC-01-018; Ex. FED-209; Ex. ME-062; Ex. SEC-01-111; Ex. MS-055, the press report of November 11, 2021 on the expiry of Mississippi's emergency, cited for that date only). Pennsylvania's reduction order (Ex. PA-025) and Maryland's nursing-home order (Ex. MD-043) are claimed only for the days they ran, to August 23 and August 15, 2021; Executive Order 21-15 of Oregon and Executive Order 21-21 of Minnesota are named only as the instruments that ended those States' conditions. The anti-mandate instruments of Texas, Montana, Florida, Arkansas and Georgia are orders in force in the quarter that fixed by law what a hospital could require of its staff, its visitors and its patients; they are counted in the finding for that reason and for no other.¹¹³