Physician Practices and Outpatient Care

The Six Quarters

In each of the six calendar quarters from April 1, 2020 through September 30, 2021, orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19 were in force on every day, reached the eleven functions of a physician practice, outpatient clinic, behavioral health provider or allied health practice, and 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. The proof for each quarter is stated in three steps: the orders in force, with their status on the quarter's first and last days; the functions they reached; and the finding in the terms the court used in Tri-State Memorial Hospital v. United States, No. 2:25-cv-0181-TOR, ECF No. 38 (E.D. Wash. May 28, 2026) ("Tri-State"). The third quarter of 2021 is written as a self-contained section because it is the quarter on which the Service's premise rests most heavily and on which it is most plainly wrong.

The second quarter of 2020

The quarter's proof includes the orders of March 13 through March 31, 2020, because the credit reaches wages paid after March 12, 2020.¹⁵⁰ By April 10, 2020 a statewide instrument prohibiting, postponing or conditioning elective and non-urgent medical, surgical and dental procedures had taken effect in at least thirty-two States, twenty-eight of them on or before April 1, 2020: Ohio from March 18 (Ex. OH-007), Massachusetts from March 18 (Ex. MA-060, reciting the order of March 15), Kentucky from March 18 (Ex. SEC-02-033), Louisiana from March 18 and 21 (Ex. LA-051; LDH Notice ALL-007 of March 21, 2020, as recited in Ex. LA-043), Alaska, Arizona, Minnesota, Oregon, Washington, Colorado and Alabama from March 19 through 23 (Ex. AK-007; Ex. SEC-02-039; Ex. SEC-02-022; Ex. SEC-02-031; Ex. WA-015; Ex. SEC-02-074; Ex. SEC-02-069; Ex. AL-011), Florida, North Carolina and Michigan from March 20 through 23 (Ex. SEC-02-020; Ex. NC-068; Ex. SEC-02-058), Vermont, Maine and Maryland from March 20 through 23 (Ex. SEC-02-034; Ex. ME-005; Ex. MD-040), Texas, Utah, Tennessee, New York and Oklahoma from March 22 through 25 (Ex. SEC-02-011; Utah's UPHO 2020-03; Ex. SEC-02-026; Ex. SEC-02-048; Ex. SEC-02-062), Virginia, New Jersey, Iowa and New Mexico from March 25 through 27 (Ex. SEC-02-054; Ex. SEC-02-017; Ex. SEC-02-042; Ex. NM-007), Indiana and West Virginia from April 1 (Ex. IN-011; Ex. WV-014), and, within the quarter's first ten days, Arkansas and Nebraska from April 3 (Ex. AR-040; Ex. NE-008), South Dakota from April 6 (Ex. SEC-02-052) and Mississippi's Executive Order 1470 from April 10 (Ex. SEC-02-078), while the District of Columbia's closure and stay-at-home orders of March 24 and 30 (Ex. DC-005; Ex. DC-006) confined every practice's patients and staff pending Mayor's Order 2020-067 and DC Health's resumption requirements of May 2020 (Ex. DC-029; Ex. DC-037; Ex. DC-039).¹⁵¹ Stay-at-home or closure orders confined the residents and the non-exempt businesses of forty-two States and territories during the quarter (Ex. LAW-201), the great majority of them in force by the first week of April 2020, and statewide gathering limits of ten or fewer persons applied in nearly every State, with Nebraska's reaching all ninety-three counties on April 3 (Ex. NE-008) and North Dakota governing by closure order rather than a gathering cap (Ex. ND-005).¹⁵² The federal layer on April 1 comprised the national and public health emergencies, the CMS recommendations of March 18, the section 1135 blanket waivers and the interim final rule of March 30, the OCR, DEA and SAMHSA telehealth permissions, the Defense Production Act orders and the scarce-materials designation of March 25, the Families First leave mandates in force from that day, the entry proclamations of January 31 and February 29 and the land-border closures of March 21, 2020.¹⁵³ The metropolitan orders in force on April 1 included San Francisco's C19-07b, Los Angeles County's Safer at Home order, New York City's Emergency Executive Orders 100 through 103, Chicago's Public Health Orders 2020-1 and 2020-2, Dallas County's and Harris County's stay-home orders, Philadelphia's Emergency Order No. 2, Atlanta's, Fulton County's and DeKalb County's orders, Denver's Stay at Home order, King County's quarantine and isolation directives, St. Louis' Health Commissioner's Order No. 5, San Diego County's orders, New Orleans' proclamations, Honolulu's Emergency Order 2020-02 and Minneapolis' Emergency Regulation 2020-1.¹⁵⁴

Between April 20 and June 1, 2020 the prohibitions were converted to conditioned resumptions: West Virginia (April 20), Texas (April 22 and May 1), Georgia (April 20), Oklahoma (April 24), Alaska (April 20 and May 4), Kentucky, Colorado, Iowa, Indiana, Mississippi and Arkansas (April 27), Tennessee (April 30 and May 6), Alabama, New Mexico, Virginia, Arizona and Oregon (April 30 and May 1), Florida (May 4), Nebraska, New Hampshire and Vermont (May 4), Maryland (May 6), Minnesota (May 10), Maine (May 12), Massachusetts and Washington (May 18), New Jersey (May 26), Michigan (May 29), South Dakota (April 28), Delaware (dentists to appointment-only care from April 7 and Phase 1 from June 1), and New York county by county from April 29.¹⁵⁵ Every resumption instrument conditioned the resumption on PPE inventories, testing capacity, hospital bed and ICU reserves, distancing, screening, appointment scheduling and reporting; none restored the practice to the operation the March orders had taken away, and every one of them was in force on June 30, 2020.¹⁵⁶ The general orders were relaxed in the same weeks but not lifted: on June 30, 2020 the stay-at-home orders of California, New York, New Jersey, Illinois, Michigan, Pennsylvania, Massachusetts, Washington, Oregon, Minnesota, Colorado, New Mexico, Hawaii and the District of Columbia remained in force in modified form, and the gathering limits, face-covering and other exposure-control orders and capacity limits of every other State applied to every clinic's waiting room.¹⁵⁷

The orders reached the functions in this way. CL: terminated for non-urgent visits by the procedure orders and the stay-at-home orders, then conditioned on screening at the door, distancing in the waiting room, masks, appointment-only scheduling and reduced schedules; the waiting room that seats twelve seated four. PR: terminated outright from mid-March to late April or May in the thirty-two States, and conditioned thereafter on PPE, testing and capacity criteria; the endoscopy, dermatology, orthopaedic, ophthalmic, pain-management and fertility procedures that make up the majority of the industry's procedural revenue were the object of the orders by name. DX: interrupted by the laboratory prioritization orders and the postponement of non-urgent imaging, screening and diagnostic testing that the procedure orders covered. TM: the only permitted mode for a large share of visits, conditioned on the federal waivers, the State parity and licensing orders and the payment rules of the interim final rules; a function that the orders created and the orders governed. FD: conditioned on screening scripts, pre-visit calls, staggered scheduling and the redeployment of front-desk staff to telephone triage. OF: conditioned on the telework mandates of New York, New Jersey, Pennsylvania, California and the other stay-at-home States, and on the billing consequences of the payment waivers. SC: interrupted by the DPA and FEMA allocation of PPE to hospitals and by New Mexico's and other States' PPE regulation; the resumption orders required inventories that the allocation orders made difficult to build. HR: interrupted by the closure of licensing and testing offices and the cancellation of board examinations, and modified by the licensure waivers of every State. WF: conditioned by the stay-at-home orders, the school and child-care closures, the fourteen-day quarantine orders and the Families First leave mandates. CB: the practice's patients were confined to their homes by order in forty-two jurisdictions, its hospital counterparties were ordered to cancel their schedules, its employer counterparties were closed, and its payers changed their rules by order. MK: terminated by the gathering bans and the closure of the venues, schools and employers at which outreach occurs.¹⁵⁸

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 statewide procedure prohibitions and their phased resumption orders, the stay-at-home and gathering orders, the licensing and telehealth orders, the federal supply-allocation, leave and travel instruments and the metropolitan health officers' orders (Ex. SEC-02-011; Ex. SEC-02-013; Ex. SEC-02-017; Ex. SEC-02-018; Ex. SEC-02-020; Ex. SEC-02-021; Ex. SEC-02-022; Ex. SEC-02-023; Ex. SEC-02-033; Ex. KY-015; Ex. SEC-02-031; Ex. SEC-02-032; Ex. WA-015; Ex. WA-032; Ex. SEC-02-048; Ex. SEC-02-049; Ex. SEC-02-058; Ex. SEC-02-070; Ex. OH-007; Ex. SEC-02-074; Ex. SEC-02-076; Ex. PA-002; Ex. MA-060; Ex. FED-070; Ex. FED-074; Ex. FED-075; Ex. FED-170; Ex. FED-160; Ex. FED-090; Ex. MET-SFO-002; Ex. MET-LA-003; Ex. MET-NYC-003; Ex. MET-PHL-003 and their counterparts in the State-by-State table), caused a temporary termination and then interruption of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by prohibiting the procedures and non-urgent visits outright for four to ten weeks, by confining the patients to their homes, by allocating the PPE without which the resumption orders forbade resumption, and by conditioning every resumed visit on screening, distancing, masks and appointment-only scheduling that reduced the visits a clinic could conduct in a day.

The third quarter of 2020

On July 1, 2020 no State had returned this industry to the conditions of February 2020. The resumption orders of April and May remained in force in every State that had issued a procedure prohibition, and the conditions they imposed were in force on September 30: Texas' GA-19 capacity reservations were supplemented by GA-27 on June 26, 2020, which prohibited non-immediately-necessary procedures in Bexar, Dallas, Harris and Travis Counties, and both were superseded by GA-31 on September 17, 2020, which prohibited them in any trauma service area above the 15 percent hospitalization threshold (Ex. SEC-02-014; Ex. SEC-02-015); New Jersey's Executive Directives 20-016 and 20-018 of June 24, 2020 conditioned every elective procedure in every hospital and ambulatory surgery center (Ex. NJ-084; Ex. NJ-085); Minnesota's EO 20-51 written-plan requirement ran the whole quarter (Ex. SEC-02-023); Oregon's EO 20-22 conditions ran the whole quarter (Ex. SEC-02-032); Washington's Proclamation 20-24.1 conditions ran the whole quarter (Ex. WA-032); New York's EO 202.25 conditions and New York Forward ran the whole quarter (Ex. SEC-02-049); Massachusetts' order of June 24, 2020 ran the whole quarter (Ex. MA-061); Michigan's EO 2020-110 and its successors ran the whole quarter; Colorado's PHO 20-29 as amended ran the whole quarter; West Virginia's EO 28-20 and 30-20 conditions ran the whole quarter (Ex. WV-023; Ex. WV-024); Maryland's amended directive of May 6, 2020 and its successors ran the whole quarter (Ex. MD-044); Kentucky's phased orders ran the whole quarter (Ex. KY-015); Alaska's Health Mandate 015 ran to November 15, 2020 (Ex. AK-017); Arizona's EO 2020-36 conditions ran to March 25, 2021 (Ex. AZ-019); New Mexico's modified restrictions ran the whole quarter (Ex. NM-013); New Hampshire's health care guidance was mandatory to May 7, 2021 (Ex. NH-050; Ex. NH-051); Maine's EO 16 § I(F) ran to August 30, 2021 (Ex. ME-005); North Dakota's EO 2020-05.1 ran to April 30, 2021 (Ex. ND-006); and California's EO N-33-20 ran to June 15, 2021.¹⁵⁹ The general orders in force on every day of the quarter included the statewide face-covering orders of Kansas (July 3) and Wisconsin (from August 1, carried by a successor order through the quarter), airborne-transmission controls imposed on every indoor public space including every clinic, and their counterparts in a majority of the States, the metropolitan face-covering orders of Maricopa County, Tucson, Minneapolis, San Francisco and King County, Hawaii's traveler quarantine, the Navajo Nation's curfews, and the gathering and capacity limits of every State.¹⁶⁰ The federal layer in force on every day of the quarter comprised the FFCRA leave mandates as revised September 16, the FEMA export rule as extended August 10, the scarce-materials designation, the section 1135 waivers and interim final rules, the entry proclamations, the land-border closures renewed monthly, and CMS's testing memorandum of August 26, 2020, its testing rule of September 2, 2020 and its visitation memorandum of September 17, 2020 that governed every facility into which a practice's physicians made rounds.¹⁶¹ The courts operated under the standing orders of the State supreme courts and federal district courts.¹⁶²

The orders reached the functions in this way. CL: conditioned on screening, distancing, masks and appointment-only scheduling by the resumption orders and the face-covering orders; the waiting room remained at a fraction of its seating. PR: re-terminated in the Texas counties named in GA-27 and the trauma service areas triggered under GA-31; conditioned everywhere else on PPE, testing and capacity criteria, with the capacity reserved for COVID-19 patients unavailable to the practice's proceduralists. DX: conditioned by the testing prioritization and reporting orders and by the laboratory turnaround the orders produced. TM: continued under the federal waivers and the State parity orders, and conditioned by them. FD: conditioned by the screening and scheduling rules. OF: conditioned by the telework requirements that remained in the stay-at-home States and by the reporting orders. SC: interrupted by the extended allocation and export rules and by the shortage of disinfectants and gloves that the designation named. HR: modified by the licensing waivers and the closure of examination centers. WF: conditioned by the school closures and remote instruction of the fall of 2020, the fourteen-day quarantine orders and the FFCRA mandates. CB: patients subject to face-covering, gathering and travel-quarantine orders; hospitals under capacity triggers; nursing homes under the CMS testing and visitation rules; schools closed or remote. MK: terminated by the gathering limits.¹⁶³

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 the conditioned resumption orders and the Texas county and trauma-service-area prohibitions, the statewide and metropolitan face-covering and gathering orders, the quarantine and travel orders, the federal leave, allocation and travel instruments and the CMS facility rules (Ex. SEC-02-014; Ex. SEC-02-015; Ex. NJ-084; Ex. NJ-085; Ex. SEC-02-023; Ex. SEC-02-032; Ex. WA-032; Ex. SEC-02-049; Ex. MA-061; Ex. WV-023; Ex. WV-024; Ex. MD-044; Ex. KY-015; Ex. AK-017; Ex. AZ-019; Ex. NM-013; Ex. NH-050; Ex. ME-005; Ex. ND-006; Ex. WI-009; Ex. HI-003; Ex. MET-PHX-023; Ex. MET-MSP-009; Ex. MET-SFO-006; Ex. FED-172; Ex. FED-077; Ex. ECO-A-070; Ex. FED-092; Ex. FED-168 and their counterparts in the State-by-State table), caused a temporary interruption of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by conditioning every procedure on criteria the practice could not itself satisfy, by re-prohibiting procedures in the most populous counties of the second-largest State, by keeping the waiting room at a fraction of its seating and by governing the patients, hospitals, schools and facilities on which the practice's operation depends.

The fourth quarter of 2020

The Service's account of this quarter is that the orders had ended. The record is that the orders re-tightened. On October 1, 2020 the conditioned resumption regimes of the third quarter remained in force in every State that had issued one, and during the quarter seven States re-imposed procedure restrictions on hospitals and health systems: Texas' GA-31 and GA-32 prohibited non-immediately-necessary procedures in every trauma service area above the 15 percent hospitalization threshold, and by January 15, 2021 eighteen of the State's twenty-two trauma service areas, covering every major metropolitan area, had crossed the threshold (Ex. SEC-02-015; Ex. SEC-02-016; Ex. TX-026); Pennsylvania's orders of November 23, 2020 imposed statewide mitigation from November 27 and required hospitals in regions of low acute-care capacity to reduce elective procedures by half, the latter running to August 23, 2021 (Ex. PA-022; Ex. SEC-02-037; Ex. PA-025); Nebraska's Directed Health Measures of November 9 and 13, 2020 required hospitals to reduce elective surgeries and imposed gathering limits statewide through December 11 (Ex. NE-021); New Mexico's order of December 9, 2020 prohibited non-essential surgical procedures from December 11 (Ex. NM-043); Massachusetts' order of December 7, 2020 curtailed elective invasive procedures from December 11 (Ex. MA-065; Ex. MA-066); Indiana's EO 20-50 of December 10, 2020 directed hospitals to postpone non-emergent inpatient procedures from December 16 (Ex. IN-048); and California's Regional Stay at Home Order of December 3, 2020 confined the residents of the Southern California and San Joaquin Valley regions to their homes from December 6, 2020, with the Greater Sacramento and Bay Area regions following as their ICU capacity fell below 15 percent, in four regions until January 25, 2021 (Ex. CA-021).¹⁶⁴ Washington's Proclamation 20-24.2 of November 25, 2020, effective December 3, re-stated the conditions on non-urgent procedures for the duration of the emergency (Ex. WA-049); Michigan's Department of Health and Human Services replaced the Governor's orders with epidemic orders after October 2, 2020, and Detroit's Emergency Order of October 9, 2020 followed (Ex. MET-DET-001); Pennsylvania's antigen-reporting order of October 13, 2020 bound every practice that tested and its immunization-reporting order of December 14, 2020 bound every practice that vaccinated (Ex. AGY-ST-HEALTH-SUBORDERS-011; Ex. AGY-ST-HEALTH-SUBORDERS-009); Florida's Department of Health Emergency Orders 20-013 and 20-015 carried the laboratory-reporting and licensure modifications into 2021 (Ex. AGY-ST-HEALTH-BOARDS-012; Ex. AGY-ST-HEALTH-BOARDS-014); Chicago's Third Amended Public Health Order 2020-2 of October 1, 2020 governed the City to December 16 (Ex. MET-CHI-004); San Diego County's isolation order of December 24, 2020 ran to July 6, 2022 (Ex. MET-SAN-023); and the Kaiser Family Foundation recorded four new statewide stay-at-home orders in the season (Ex. LAW-232).¹⁶⁵ The workplace standards arrived in the quarter: Cal/OSHA's § 3205 took effect November 30, 2020, Oregon OSHA's temporary rule November 16, Michigan's MIOSHA emergency rules October 14, Washington's Labor and Industries rule December 16, Virginia's standard from July 27, and Colorado's Wage Protection Rules November 10, each governing the medical office as a workplace (Ex. SEC-02-047; Ex. AGY-ST-LABOR-WORKPLACE-001; Ex. AGY-ST-LABOR-WORKPLACE-046).¹⁶⁶ The continuing regimes ran the whole quarter in Minnesota (EO 20-51), New Jersey (EDs 20-016 and 20-018), Oregon (EO 20-22), New York (EO 202.25 and New York Forward), Colorado (PHO 20-29), West Virginia (EOs 28-20 and 30-20), Maryland, Kentucky, Arizona (EO 2020-36), New Mexico, Maine, North Dakota, New Hampshire, Alaska (Mandate 015 to November 15) and California (EO N-33-20).¹⁶⁷ The federal layer ran the whole quarter: the FFCRA mandates to December 31, the FEMA rule as extended December 31 to June 30, 2021, the scarce-materials designation, the section 1135 waivers and interim final rules, the CMS nursing home testing rule and the visitation memorandum of September 17, the entry proclamations and the monthly land-border closures.¹⁶⁸

The orders reached the functions in this way. CL: conditioned throughout by the mask, screening, distancing and appointment-only requirements of the resumption orders and the workplace standards, and re-terminated for non-urgent care in the California regions under the Regional order. PR: re-terminated in the Texas trauma service areas above the threshold, reduced by half in the Pennsylvania regions of low capacity, and postponed in Nebraska, New Mexico, Massachusetts and Indiana; conditioned everywhere else. DX: conditioned by the reporting orders and the testing prioritization. TM: continued under the waivers and conditioned by them. FD: conditioned by screening and scheduling rules and by the workplace standards' exposure-notification and exclusion requirements. OF: conditioned by the telework requirements of the stay-at-home States and the workplace standards. SC: interrupted by the extended allocation and export rules. HR: modified by the licensure orders; interrupted by examination cancellations. WF: conditioned by the workplace standards' quarantine and exclusion rules, the school closures of the winter, and the FFCRA mandates. CB: patients confined again in California and under face-covering, gathering and curfew orders elsewhere; hospitals under triggers; nursing homes under the CMS rules; schools remote. MK: terminated by the gathering limits.¹⁶⁹

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 re-imposed procedure restrictions of Texas, Pennsylvania, Nebraska, New Mexico, Massachusetts, Indiana and California, the continuing conditioned resumption orders, the State workplace standards, the statewide and metropolitan face-covering, gathering and stay-at-home orders, and the federal leave, allocation, facility and travel instruments (Ex. SEC-02-015; Ex. SEC-02-016; Ex. PA-022; Ex. SEC-02-037; Ex. PA-025; Ex. NE-021; Ex. NM-043; Ex. MA-066; Ex. IN-048; Ex. CA-021; Ex. WA-049; Ex. SEC-02-047; Ex. AGY-ST-HEALTH-SUBORDERS-011; Ex. AGY-ST-HEALTH-SUBORDERS-009; Ex. SEC-02-023; Ex. NJ-084; Ex. NJ-085; Ex. SEC-02-032; Ex. WV-023; Ex. AZ-019; Ex. MET-DET-001; Ex. MET-CHI-004; Ex. MET-SAN-023; Ex. FED-170; Ex. FED-078; Ex. FED-092; Ex. LAW-232 and their counterparts in the State-by-State table), caused a temporary interruption and, in the named regions, termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by prohibiting or halving the procedures in the regions named, by conditioning every procedure and visit elsewhere, by governing the medical office as a workplace under standards that excluded exposed staff, and by confining the patients and closing the schools on which the workforce depends.

The first quarter of 2021

On January 1, 2021 every instrument named for the fourth quarter of 2020 other than the FFCRA mandates and Nebraska's November measures remained in force. Texas' GA-32 triggers ran until GA-34 took effect March 10, 2021 (Ex. SEC-02-016); Pennsylvania's elective-reduction order ran the whole quarter (Ex. PA-025); Massachusetts' curtailment ran to March 1 (Ex. MA-066); Indiana's EO 20-50 and its extensions ran to January 31 (Ex. IN-048; Ex. IN-051; Ex. IN-052); New Mexico's ran to January 4 (Ex. NM-043); California's Regional order ran to January 25 and the hospital surge order of January 5 required hospitals in regions below 10 percent ICU capacity to delay non-essential surgeries to February 5 (Ex. CA-026); Arizona's EO 2020-36 ran to March 25 (Ex. AZ-019); Kansas' face-covering order, Executive Order 20-52, an airborne-transmission control on every indoor public space, ran to March 31; Florida's Department of Health orders ran through the quarter (Ex. AGY-ST-HEALTH-BOARDS-014); and the continuing regimes of Washington, Minnesota, New Jersey, Oregon, New York, Colorado, West Virginia, Maryland, Kentucky, New Mexico, Maine, North Dakota, New Hampshire and California ran the whole quarter (Ex. WA-049; Ex. SEC-02-023; Ex. NJ-084; Ex. NJ-085; Ex. SEC-02-032; Ex. WV-023; Ex. WV-024; Ex. MD-044; Ex. KY-015; Ex. NM-013; Ex. ME-005; Ex. ND-006; Ex. NH-050).¹⁷⁰ The federal layer was rebuilt in the quarter: Executive Order 13991 of January 20 required masks and distancing in federal buildings and on federal lands; Executive Order 13998 of January 21 directed the transportation face-covering requirement; OMB M-21-15 of January 24 capped federal occupancy at 25 percent; the CDC's conveyance order took effect February 1 and its pre-departure testing order January 26; the TSA's determination of January 27 and its security directives followed; Proclamation 10143 of January 25 extended the entry suspensions; the Notice of February 24 continued the national emergency; the scarce-materials designation was extended February 1; the FEMA rule ran to June 30; OSHA's National Emphasis Program of March 12 targeted health care employers for inspection; the Department of Defense's memorandum of March 15 governed installation travel; the CMS visitation memorandum was revised March 10; and Virginia's standard was made permanent January 27 (Ex. FED-060; Ex. FED-061; Ex. FED-270; Ex. FED-020; Ex. FED-042; Ex. FED-057; Ex. FED-207; Ex. FED-002; Ex. ECO-A-070; Ex. FED-078; Ex. FED-082; Ex. FED-280; Ex. FED-155).¹⁷¹ The courts continued under standing orders (Ex. FED-306, March 11, 2021), and Rhode Island's EO 21-26 of March 19, 2021 restated its quarantine-and-isolation order (Ex. RI-036).

The orders reached the functions in this way. CL: conditioned throughout; terminated for non-urgent care in the California regions to January 25. PR: terminated in the Texas trauma service areas above the threshold to March 10, halved in the Pennsylvania regions, curtailed in Massachusetts to March 1 and in the California surge regions to February 5, and conditioned everywhere else. DX: conditioned by the reporting orders. TM: continued and conditioned under the waivers. FD and OF: conditioned by the workplace standards and the federal-building occupancy cap where a practice served federal facilities. SC: interrupted by the allocation and export rules to June 30 and by the FDA respirator authorizations. HR: modified by the licensure orders. WF: conditioned by the workplace standards, the school closures and the conveyance order that governed every commute by transit. CB: patients under face-covering, gathering and travel orders; hospitals under triggers; nursing homes under the revised visitation rules. MK: terminated by the gathering limits.¹⁷²

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 Texas, Pennsylvania, Massachusetts, Indiana, New Mexico and California procedure restrictions for the days they ran, the continuing conditioned resumption orders of fourteen States, the State workplace standards, the face-covering and gathering orders, the rebuilt federal layer of January 2021 and the CMS facility rules (Ex. SEC-02-016; Ex. PA-025; Ex. MA-066; Ex. IN-048; Ex. NM-043; Ex. CA-026; Ex. AZ-019; Ex. WA-049; Ex. SEC-02-023; Ex. NJ-084; Ex. SEC-02-032; Ex. WV-023; Ex. MD-044; Ex. KY-015; Ex. ME-005; Ex. ND-006; Ex. NH-050; Ex. SEC-02-047; Ex. FED-060; Ex. FED-061; Ex. FED-020; Ex. FED-207; Ex. FED-082; Ex. FED-078 and their counterparts in the State-by-State table), caused a temporary interruption and, in the named regions, termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by prohibiting or curtailing the procedures in the regions named for the days named, by conditioning every procedure and visit in fourteen States on criteria fixed by order, by governing the medical office as a workplace and by governing the transit, hospitals, facilities and schools on which the practice's operation depends.

The second quarter of 2021

The quarter in which the Service supposes the orders ended is the quarter in which the orders were replaced. On April 1, 2021 the conditioned resumption regimes remained in force in Washington (to the end of the emergency), Minnesota (to May 27), New Jersey (continued past June 4), Oregon (to June 30), New York (to June), Colorado (PHO 20-29 to April 16, and the PHO 20-38 and PHO 20-20 series thereafter), West Virginia (the paragraph 2 orders of EO 12-21 from April 19), Maryland (continued by the directive of June 15 to December 31), Kentucky (to June 11, with the emergency continuing), New Mexico (to June 30), Maine (to August 30), North Dakota (to April 30), New Hampshire (to May 7), California (to June 15), Louisiana (LDH order to May 24) and Pennsylvania (the elective-reduction order to August 23), and Illinois' general orders ran to June 11 (Ex. WA-049; Ex. SEC-02-023; Ex. NJ-084; Ex. NJ-085; Ex. SEC-02-032; Ex. OR-043; Ex. CO-051; Ex. CO-042; Ex. WV-063; Ex. MD-073; Ex. KY-001; Ex. NM-013; Ex. ME-005; Ex. ND-006; Ex. NH-050; Ex. SEC-02-073; Ex. LA-047; Ex. PA-025).¹⁷³ The facility orders that would govern the third quarter issued in this one, among them the health care face-covering requirements that every State preserved as infection-prevention controls on every clinical setting when it lifted its general order: Ohio's amended testing orders of May 4 (Ex. OH-049; Ex. OH-071); Michigan's residential care order of May 21; Kansas' adult care home testing order of June 18; Pennsylvania's skilled nursing reporting order of May 26 and Act 21 of June 11 (Ex. PA-038); New Jersey's revised Executive Directives of June 16 and EO 242 of May 24 preserving the face-covering requirement in health care settings (Ex. AGY-ST-HEALTH-SUBORDERS-033; Ex. AGY-ST-HEALTH-SUBORDERS-034; Ex. NJ-050); Massachusetts' health care face-covering order of May 28 and reissuance of June 14 (Ex. MA-050; Ex. MA-054); Connecticut's universal-masking rule for health care settings of May 19; Delaware's Twenty-Ninth Modification of May 18 and the emergency Secretary's orders of June 17 and 25 (Ex. DE-062; Ex. DE-061; Ex. DE-063); Rhode Island's emergency amendment of June 18 (Ex. RI-071); Maryland's amended directive of June 15; California's Beyond the Blueprint order of June 11 preserving the face-covering requirement in health care settings and Cal/OSHA's readoption of § 3205 on June 17 (Ex. SEC-02-073; Ex. SEC-02-047); New York's emergency readoption of the face-covering rule on June 23 and the HERO Act of May 5 as amended June 11 (Ex. ECO-B-120; Ex. AGY-ST-LABOR-WORKPLACE-011); Massachusetts' emergency paid sick leave act of May 28 (Ex. AGY-ST-LABOR-WORKPLACE-009); Vermont's EO 06-21 of June 15; Maine's EO 40 of June 30; Idaho's proclamation of June 18 (Ex. ID-046); Alaska's public health emergency order of April 30 (Ex. AK-030); Hawaii's Twenty-First Proclamation of June 7; and the Navajo Nation's order of June 18 (Ex. AZ-078).¹⁷⁴ The preemption instruments issued in the same weeks: Arkansas' Act 1002 (April 28), Florida's chapter 2021-8 (May 3), Montana's HB 702 (May 7), North Dakota's HB 1465 (signed May 7, effective May 10), Alabama's SB 267 (May 17), Iowa's HF 847 and HF 889 (May 20), Utah's HB 1007 and Oklahoma's EO 2021-16 (May 28), South Carolina's Act 94 (June 30), and Texas' GA-34 (March 10) followed by GA-38 (July 29) (Ex. MT-072; Ex. ND-082; Ex. AL-078; Ex. IA-046; Ex. IA-047; Ex. UT-045; Ex. OK-042; Ex. SC-045).¹⁷⁵ The federal layer ran the whole quarter and added the instruments that define the third: CMS's vaccination rule for long-term care facilities of May 21 and QSO-21-19-NH, the revised visitation memorandum of April 27, the TSA security directive effective May 12 and its ratification of April 20, Proclamation 10199 of April 30 (India), the land-border notifications of June 23, OMB M-21-25 of June 10 lifting the federal occupancy cap, the FEMA rule and its exemptions to June 30, the CDC eviction order extension of June 24, and, from June 21, 2021, the OSHA Healthcare Emergency Temporary Standard with its enforcement directive of June 28 (Ex. FED-094; Ex. FED-163; Ex. FED-156; Ex. FED-051; Ex. FED-056; Ex. FED-208; Ex. FED-232; Ex. FED-255; Ex. FED-271; Ex. FED-078; Ex. FED-079; Ex. FED-025; Ex. SEC-02-001; Ex. FED-080; Ex. FED-081).¹⁷⁶ The metropolitan orders that lifted the general limits (Chicago's Phase 5 order of June 11, San Francisco's C19-07y of June 11, San Diego's Limited Order of June 14, Philadelphia's Full Reopening Order of June 15, New York City's EEO 212 of June 26) each preserved health care requirements, and St. Louis County's Sixth Amended Quarantine and Isolation Order of April 21 and the Maricopa County Superior Court's order of May 26 governed their counterparties (Ex. MET-CHI-018; Ex. MET-SFO-008; Ex. MET-SAN-022; Ex. MET-PHL-018; Ex. MET-NYC-014; Ex. MET-STL-067; Ex. MET-PHX-004).¹⁷⁷ The federal courts' orders of May 26, June 21 and June 23 governed the courthouses (Ex. FED-297; Ex. FED-301; Ex. FED-337).

The orders reached the functions in this way. CL: conditioned throughout by the health care face-covering requirements, infection-prevention controls on every clinical setting, that every State preserved when it lifted the general mask order, by the screening and distancing requirements of the resumption orders to their end dates, and, from June 21, by the ETS's patient screening, distancing, barrier and PPE requirements. PR: conditioned in sixteen States to the end dates named, halved in the Pennsylvania regions the whole quarter, and from June 21 conditioned by the ETS in every setting that did not screen every non-employee at the door. DX: conditioned by the reporting orders and the ETS's recordkeeping rules. TM: continued under the waivers; the section 1135 waivers remained the only authority for home-to-home telehealth. FD: conditioned by screening rules and, from June 21, by the ETS's requirement that patients be screened and that suspected cases be managed by protocol. OF: conditioned by the workplace standards and, from June 21, by the ETS's written-plan, training and recordkeeping obligations. SC: interrupted to June 30 by the allocation and export rules and by the FDA's revocation of the imported-respirator authorization effective July 6. HR: modified by the licensure orders continued by Act 21 and the DCA waivers. WF: conditioned by the workplace standards, the quarantine rules of the ETS and the State standards, the school rules and the conveyance order. CB: hospitals and nursing homes under the CMS vaccination and visitation rules and the State facility orders; schools under masking and quarantine rules; courts under standing orders. MK: interrupted by the gathering limits to their end dates.¹⁷⁸

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 conditioned resumption orders of sixteen States for the days they ran, the Pennsylvania elective-reduction order, the health care face-covering, facility and reporting orders that succeeded the general orders, the State workplace standards, the preemption instruments, the federal facility, travel, allocation and workplace instruments and, from June 21, the OSHA Healthcare Emergency Temporary Standard (Ex. WA-049; Ex. NJ-084; Ex. NJ-085; Ex. SEC-02-032; Ex. OR-043; Ex. CO-042; Ex. WV-063; Ex. KY-001; Ex. NM-013; Ex. ME-005; Ex. ND-006; Ex. NH-050; Ex. SEC-02-073; Ex. LA-047; Ex. PA-025; Ex. PA-038; Ex. OH-049; Ex. NJ-050; Ex. MA-050; Ex. RI-071; Ex. SEC-02-047; Ex. ECO-B-120; Ex. FED-094; Ex. FED-156; Ex. FED-051; Ex. FED-208; Ex. FED-078; Ex. SEC-02-001; Ex. FED-081 and their counterparts in the State-by-State table), caused a temporary interruption of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by conditioning every procedure and visit in sixteen States for the days the resumption orders ran, by halving procedures in the Pennsylvania regions for the whole quarter, by preserving in every State the mask, screening and distancing requirements for health care settings that the general orders had carried, and by imposing on every health care workplace from June 21 a federal standard that required screening at the door, distancing, barriers and the removal of exposed staff with pay.

The third quarter of 2021

Between July 1 and September 30, 2021, the operation of the physician practice, outpatient clinic, behavioral health and allied health industry was partially suspended due to orders from appropriate governmental authorities limiting commerce, travel and group meetings due to COVID-19. On every day of the quarter a federal occupational safety standard written for health care settings alone governed every clinic that did not screen every non-employee at its door, required six feet between every person in every room, required barriers at every fixed workstation, and required the practice to remove exposed staff with pay; on every day of the quarter the federal conveyance, entry and border orders governed the practice's commuting staff and travelling patients; on every day of the quarter the health care mask, screening and facility requirements that every State preserved when it lifted its general orders remained in force; and inside the quarter fifteen States, the District of Columbia and Puerto Rico (seven of those jurisdictions, California, Washington, Oregon, Illinois, New Jersey, Rhode Island and the District, naming clinics, doctors' offices or every licensed provider, the others binding hospitals, nursing homes and other licensed facilities) issued a new generation of orders that required the practice's own workforce to be vaccinated or tested as a condition of working, North Carolina, Virginia, Minnesota and Hawaii imposed the same condition on public employees, seven States and the District reinstated indoor face-covering requirements on staff and patients, airborne-transmission controls that reached every clinic, the States and counties named in subpart B reinstated masking and quarantine in the schools on which the workforce depends, and the largest counties and cities added orders of their own. Pennsylvania's elective-reduction order ran to August 23, 2021; Maine's health care order ran to August 30, 2021; Washington's Proclamation 20-24.2 ran the whole quarter; Maryland's health care directive ran the whole quarter; New Jersey's Executive Directives ran the whole quarter; West Virginia's resumption conditions ran to October 1, 2021. This section is written to be read alone.

A. The Service's premise about the quarter and what the statute asks

The Service's form letter states the premise in one sentence.¹⁷⁹

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.

What the statute asks

Section 3134(c)(2)(A)(ii)(I), enacted by the American Rescue Plan Act for the third and fourth quarters of 2021, asks whether "the operation of the trade or business" is "fully or partially suspended during the calendar quarter due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes) due to the coronavirus disease 2019 (COVID-19)."¹⁸⁰ It does not ask whether the orders were addressed to the employer, whether the employer was designated essential, whether the orders were issued by a governor rather than a health officer or a federal agency, whether the employer could have operated remotely, or whether the effect exceeded a percentage. It asks whether orders limited commerce, travel or group meetings, and whether the operation was partially suspended during the quarter because of them. Tri-State holds that a partial suspension includes a "delay" or "interruption" of a more than nominal portion of the operation and that the statute's causation standard is but-for causation.¹⁸¹ The 2021 re-enactment carried the clause forward without change, against the background of the Notice's own reading, and the United States has represented in two courts that the Notice's percentage is a safe harbor and not a requirement; this analysis holds the United States to that representation.¹⁸²

B. The instruments in force from July 1 through September 30, 2021

B-1. The OSHA Healthcare Emergency Temporary Standard and its enforcement directives

Exhibits: Ex. SEC-02-001; Ex. FED-080; Ex. FED-081; Ex. SEC-02-002. Issuer: the Occupational Safety and Health Administration under 29 U.S.C. § 655(c). Dates: published June 21, 2021; compliance required July 6, 2021 for all provisions other than physical barriers, ventilation and training, and July 21, 2021 for those; non-recordkeeping provisions withdrawn December 27, 2021. Operative clause: the standard applies to "all settings where any employee provides healthcare services or healthcare support services," and excepts a non-hospital ambulatory care setting only where "all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter"; within its scope it requires a written COVID-19 plan with a designated safety coordinator and a workplace-specific hazard assessment, the limiting and monitoring of points of entry, the screening and triage of every patient and visitor, standard and transmission-based precautions, respirators and PPE for exposure to suspected or confirmed cases, physical distancing of at least six feet when indoors, cleanable or disposable physical barriers at fixed work locations outside direct patient care areas, cleaning and disinfection, ventilation requirements, daily health screening of employees, notification and removal of exposed or infected employees, medical removal protection benefits for removed employees, paid time for vaccination and recovery, training, a COVID-19 log and reporting of work-related fatalities and hospitalizations to OSHA.¹⁸³ Compliance: certification of screening at the door was the only route out of the standard for an ambulatory practice, and a practice that treated a symptomatic patient, admitted an unscreened visitor or shared a suite with a practice that did was inside it. Enforcement: citations and penalties under 29 U.S.C. § 666; inspection procedures under DIR 2021-02 of June 28, 2021; programmed inspections of health care employers under the Revised National Emphasis Program of July 7, 2021. Status: in force July 1 and September 30, 2021. Functions: CL, PR, DX, FD, OF, SC, HR, WF.

B-2. The federal conveyance, entry and border instruments

Exhibits: Ex. FED-020; Ex. FED-051; Ex. FED-052; Ex. FED-207; Ex. FED-208; Ex. FED-233; Ex. FED-234; Ex. FED-235; Ex. FED-256; Ex. FED-257; Ex. FED-258; Ex. FED-042. Issuer: the Centers for Disease Control and Prevention under 42 U.S.C. § 264; the Transportation Security Administration; the President under 8 U.S.C. § 1182(f); the Department of Homeland Security. Dates: the conveyance order effective February 1, 2021 "until further notice"; Security Directive SD 1582/84-21-01A effective May 12 through September 13, 2021 and Security Directive SD 1582/84-21-01B effective September 14, 2021 through January 18, 2022; Proclamations 10143 and 10199 in force to November 8, 2021; the land-border notifications of July 22, August 23 and September 22, 2021 each closing the Canadian and Mexican borders to non-essential travel for a further month; the pre-departure testing order in force through the quarter. Operative clause: every person on a conveyance or at a transportation hub must wear a mask, and every operator must require it; entry of non-citizens physically present in the named countries is suspended; non-essential land-border travel is prohibited. Enforcement: federal law with civil penalties; refusal of entry. Status: in force July 1 and September 30, 2021. Functions: WF (every employee who commuted by bus, rail or rideshare), CB (every travelling patient, including the cross-border patients of El Paso, San Diego, Detroit and Buffalo), HR (every foreign-trained physician, resident and fellow awaiting entry).¹⁸⁴

B-3. The federal health, supply and workplace layer

Exhibits: Ex. FED-016; Ex. FED-160; Ex. FED-094; Ex. FED-163; Ex. FED-156; Ex. FED-194; Ex. AGY-FED-HEALTH-OTHER-009; Ex. AGY-FED-HEALTH-OTHER-049; Ex. AGY-FED-HEALTH-OTHER-048; Ex. AGY-FED-HEALTH-OTHER-052; Ex. ECO-A-071; Ex. AGY-FED-HEALTH-OTHER-069; Ex. AGY-FED-HEALTH-OTHER-070; Ex. AGY-DEFENSE-GUARD-081; Ex. AGY-DEFENSE-GUARD-086; Ex. AGY-DEFENSE-GUARD-114; Ex. AGY-DEFENSE-GUARD-116 (the status update issued under Ex. FED-280; context); Ex. FED-272; Ex. FED-278; Ex. FED-063; Ex. FED-064 (issued Sept. 9, 2021; compliance dates after the quarter; issuance only); Ex. FED-275; Ex. FED-009; Ex. FED-025; Ex. FED-026. Issuer: the Secretary of Health and Human Services; CMS; the Office for Civil Rights; the DEA; the FDA; the Department of Veterans Affairs; the Department of Defense; the President; the Safer Federal Workforce Task Force; the CDC. Dates: the public health emergency renewed July 19, 2021 through October 17, 2021; the section 1135 waivers and telehealth enforcement discretion in force the whole quarter; CMS's vaccination-education and reporting rule for long-term care facilities in force from May 21, 2021; the revised visitation memorandum of April 27, 2021 in force the whole quarter; the FDA's revocation of the decontamination-system authorizations effective June 30, 2021 and of the imported-respirator authorization effective July 6, 2021, published at 86 Fed. Reg. 48712 (Aug. 31, 2021); the scarce-materials designation extended July 7, 2021 to November 15, 2021; the VA vaccination mandate of July 26, 2021 expanded August 12, 2021; the DoD face-covering memorandum of July 28, 2021, vaccination memorandum of August 24, 2021 and personnel-movement and travel restrictions under the Secretary's memorandum of March 15, 2021, in force "until further notice" and announced by the Department's weekly status update as reaching 230 installations as of September 27, 2021; the federal-building mask reinstatement of July 29, 2021 and vaccination certification of August 6, 2021; Executive Orders 14042 and 14043 of September 9, 2021 and the contractor determination of September 24, 2021; the Stafford Act memorandum of August 17, 2021; the CDC eviction orders to July 31 and from August 3, 2021. Operative clauses: the waivers permit what the underlying rules forbid; the facility rules require education, offering and reporting of vaccination and govern visitation; the revocations withdraw the lawful basis for the respirators in use; the mandates require vaccination or exclusion; the eviction orders stay removals. Enforcement: conditions of participation, EUA law, federal employment and contract law. Status: in force July 1 and September 30, 2021 (the eviction orders for the days they ran). Functions: TM, SC, CB, WF, HR.

B-4. California

Exhibits: Ex. SEC-02-046; Ex. CA-031; Ex. SEC-02-045; Ex. CA-030; Ex. SEC-02-073; Ex. CA-036; Ex. AGY-ST-HEALTH-SUBORDERS-110 (CDPH face-covering guidance under the June 11 order); Ex. AGY-ST-HEALTH-SUBORDERS-111 (industry guidance; context); Ex. SEC-02-047; Ex. AGY-ST-HEALTH-SUBORDERS-086; Ex. AGY-ST-HEALTH-SUBORDERS-092; Ex. AGY-ST-HEALTH-BOARDS-039; Ex. AGY-ST-HEALTH-BOARDS-040; Ex. AGY-ST-HEALTH-BOARDS-041; Ex. AGY-ST-HEALTH-BOARDS-042; Ex. AGY-ST-HEALTH-BOARDS-043; Ex. ECO-C-101; Ex. MET-LA-018; Ex. MET-LA-019; Ex. MET-LA-021; Ex. MET-LA-022; Ex. MET-LA-023; Ex. MET-LA-055; Ex. MET-SFO-010; Ex. MET-SFO-011; Ex. MET-SFO-017; Ex. MET-SFO-049; Ex. MET-SFO-071; Ex. MET-SAN-022; Ex. MET-SAN-024. Issuer: the State Public Health Officer under Health and Safety Code §§ 120125 and 120140; the Occupational Safety and Health Standards Board; the Department of Public Health; the Department of Consumer Affairs; the county health officers. Dates and operative clauses: the Beyond the Blueprint order of June 11, 2021, effective June 15, lifted the general restrictions and required face coverings in health care settings for everyone regardless of vaccination status, an infection-prevention control on every clinic; the order of July 26, 2021 required every worker in a health care facility, congregate setting or other named setting to verify vaccination status and required unvaccinated workers to be tested at least weekly (twice weekly in acute care and skilled nursing settings) and to wear respirators, with full compliance by August 23, 2021; the order of August 5, 2021 required every worker in a hospital, skilled nursing facility, clinic, physician office, dialysis center, hospice and other listed setting to be fully vaccinated by September 30, 2021; the face-covering guidance of July 28, 2021 recommended universal indoor masking and the county orders that followed required it; Cal/OSHA's § 3205, readopted June 17, 2021, required a written prevention program, exclusion of exposed and infected employees with pay, notice of exposure, testing at no cost and respirators on request in every California workplace; the All Facilities Letters governed licensed clinics and facilities; the DCA waivers of July 1, July 26, August 31 and September 28, 2021 modified license renewal; AB 832 of June 28, 2021 continued rental protections. Los Angeles County reinstated indoor face coverings from July 17, 2021, an airborne-transmission control on every indoor public setting including every clinic, and required health care worker vaccination by September 30 (August 12 order); Pasadena followed on August 20; San Francisco and the Bay Area counties reinstated indoor face coverings from August 3, 2021, the same control, and San Francisco required proof of vaccination for indoor dining, fitness and large events from August 20; San Diego County's Limited Order and quarantine order ran the whole quarter. Enforcement: Health and Safety Code § 120275 (misdemeanor); Labor Code § 6317 (citations); facility licensure. Status: in force July 1 (the June 15 order, § 3205, the AFLs, the DCA waivers and the San Diego and San Francisco orders of June 14 and June 11) and September 30, 2021 (the instruments named above in their then-current form, together with the July 26 and August 5 orders, the Los Angeles County and Bay Area face-covering orders from July 17 and August 3 and the health care worker vaccination orders of Los Angeles County and Pasadena). Functions: CL, PR, DX, FD, OF, SC, HR, WF, CB.¹⁸⁵

B-5. New York

Exhibits: Ex. NY-135; Ex. SEC-02-038; Ex. NY-071; Ex. NY-073; Ex. NY-070; Ex. ECO-B-120; Ex. AGY-ST-LABOR-WORKPLACE-011; Ex. AGY-ST-LABOR-WORKPLACE-003; Ex. MET-NYC-035; Ex. MET-NYC-036; Ex. MET-NYC-017; Ex. MET-NYC-018; Ex. MET-NYC-019; Ex. MET-NYC-020; Ex. MET-NYC-021. Issuer: the Commissioner of Health under Public Health Law §§ 225 and 2803; the Governor under Executive Law § 28; the Legislature; the New York City Commissioner of Health and Mental Hygiene and the Mayor. Dates and operative clauses: 10 NYCRR Subpart 66-3, readopted June 23, 2021, required face coverings in health care settings, an airborne-transmission control on every clinical setting, until its repeal and replacement on August 27, 2021 by 10 NYCRR 2.60; Subpart 66-4 of July 30, 2021 required vaccination of nursing home and adult care facility personnel; 10 NYCRR 2.61 of August 26, 2021 required every "covered entity," defined to include general hospitals, nursing homes, diagnostic and treatment centers, adult care facilities, certified home health agencies, hospices and licensed home care services agencies, to "continuously require personnel to be fully vaccinated," with the first dose received by September 27, 2021 for hospitals and nursing homes and by October 7, 2021 for the others; the Commissioner's Determination of August 27, 2021 required face coverings in health care settings under 10 NYCRR 2.60, the airborne-transmission control preserved for every clinical setting; Executive Order 4 of September 27, 2021 declared a statewide disaster emergency for the health care staffing shortage and suspended licensing and scope-of-practice rules to meet it; Labor Law § 218-b required every private employer to adopt and, on the Commissioner's designation of September 6, 2021, to activate an airborne infectious disease exposure prevention plan; Chapter 25 of the Laws of 2020 required paid leave for employees under quarantine or isolation orders. New York City required vaccination or weekly testing of City employees and contracted health and human services staff from July 21 and August 10, 2021, and required proof of vaccination for indoor dining, fitness and entertainment from August 16 (enforced from September 13), 2021. Enforcement: Public Health Law § 12 (civil penalties); facility licensure; Labor Law § 218-b(6) (penalties). Status: in force July 1 (Subpart 66-3, § 218-b, Chapter 25); on September 30, 2021 the instruments named above in their then-current form, Subpart 66-3 having been replaced on August 27 by 10 NYCRR 2.60 and the Commissioner's Determination under it. Functions: HR, WF, CL, OF, CB.¹⁸⁶

B-6. New Jersey

Exhibits: Ex. NJ-084; Ex. NJ-085; Ex. AGY-ST-HEALTH-SUBORDERS-033; Ex. AGY-ST-HEALTH-SUBORDERS-034; Ex. NJ-050; Ex. NJ-055; Ex. SEC-02-019; Ex. NJ-056; Ex. NJ-057; Ex. AGY-ST-HEALTH-SUBORDERS-061; Ex. AGY-ST-LABOR-WORKPLACE-005; Ex. AGY-ST-LABOR-WORKPLACE-006; Ex. ECO-C-081. Issuer: the Governor under the Emergency Health Powers Act, N.J.S.A. 26:13-1 et seq.; the Commissioner of Health; the Legislature. Dates and operative clauses: Executive Directives 20-016 and 20-018, as revised June 16, 2021, conditioned every elective surgery and invasive procedure in every hospital and ambulatory surgery center on screening, testing, PPE and capacity requirements and were continued after June 4, 2021 to January 11, 2022; Executive Order 242 of May 24, 2021 preserved the face-covering requirement in health care settings, an infection-prevention control on every licensed clinical setting; Executive Order 251 of August 6, 2021 required face coverings in schools from August 9, a school infection-control condition on the workforce's children's attendance; Executive Order 252 of August 6, 2021 required every covered worker in a health care facility or congregate setting to be fully vaccinated or tested at least once or twice weekly by September 7, 2021, with the facilities defined to include acute, pediatric, inpatient rehabilitation and psychiatric hospitals, long-term care facilities, ambulatory surgery centers, home health and hospice agencies, licensed clinics and other named settings; Executive Order 253 of August 23, 2021 extended the requirement to school and State workers; the Standing Order for COVID-19 Testing of May 12, 2020 remained in force; P.L. 2020, c. 9 and c. 17 protected employees who took leave on medical advice; Executive Order 106 stayed evictions. Enforcement: N.J.S.A. App. A:9-49 (disorderly persons offense); facility licensure. Status: in force July 1 (the Directives, EO 242, the Standing Order, the statutes) and September 30, 2021 (all of the above and EOs 251 through 253). Functions: PR, CL, HR, WF, CB.¹⁸⁷

B-7. Illinois

Exhibits: Ex. IL-040; Ex. SEC-02-051; Ex. SEC-02-050; Ex. IL-068; Ex. ECO-C-091; Ex. MET-CHI-018; Ex. MET-CHI-026; Ex. MET-CHI-041; Ex. MET-CHI-049. Issuer: the Governor under the Illinois Emergency Management Agency Act, 20 ILCS 3305/7; the Chicago Commissioner of Public Health; the Cook County Department of Public Health. Dates and operative clauses: Executive Order 2021-12 of June 11, 2021 lifted the general limits and continued the health care face-covering requirement, an infection-prevention control on every clinical setting; Executive Order 2021-18 of August 4, 2021 required face coverings in schools, a school infection-control condition on the workforce's children's attendance, and vaccination of State employees in congregate facilities; Executive Order 2021-20 of August 26, 2021 required every person over the age of two to wear a face covering indoors from August 30, 2021 and required every "health care worker" in a "health care facility" (defined to include hospitals, ambulatory surgical treatment centers, physician offices, dental offices, clinics and other listed settings) to receive a first dose within ten days (September 5, 2021) and a second within thirty days, or to be tested at least weekly; Executive Order 2021-22 of September 3, 2021 restated the requirements and moved the first-dose deadline to September 19, 2021; §§ 9 and 10 of Executive Order 2020-09 continued the telehealth authorizations monthly; Executive Order 2020-30 stayed evictions. Chicago reinstated indoor face coverings by Public Health Order 2021-1 of August 20, 2021, as did Cook County by Order 2021-10 and Oak Park by its order of August 5, airborne-transmission controls on every indoor public space including every clinic. Enforcement: 20 ILCS 3305/19 (Class A misdemeanor); Department of Public Health licensure. Status: in force July 1 (EO 2021-12, EO 2020-09, EO 2020-30); on September 30, 2021 the instruments named above in their then-current form, EO 2021-18 and EO 2021-22 in force and EO 2021-22 having replaced EO 2021-20 on September 3. Functions: CL, HR, WF, TM, CB.¹⁸⁸

B-8. The Pacific Northwest and the Mountain West

Exhibits: Ex. WA-049; Ex. WA-070; Ex. WA-078; Ex. WA-084; Ex. WA-072; Ex. WA-080; Ex. WA-085; Ex. SEC-02-030; Ex. WA-077; Ex. WA-079; Ex. WA-087; Ex. AGY-ST-LABOR-WORKPLACE-054; Ex. AGY-ST-LABOR-WORKPLACE-055; Ex. AGY-ST-LABOR-WORKPLACE-056; Ex. AGY-ST-LABOR-WORKPLACE-061; Ex. ECO-C-084; Ex. MET-SEA-002; Ex. MET-SEA-001; Ex. MET-SEA-018; Ex. OR-043; Ex. OR-045; Ex. OR-046; Ex. OR-051; Ex. OR-048; Ex. SEC-02-079; Ex. OR-047; Ex. AGY-ST-LABOR-WORKPLACE-021; Ex. NM-063; Ex. NM-068; Ex. NM-070; Ex. NM-071; Ex. CO-041; Ex. CO-053; Ex. CO-091; Ex. CO-042; Ex. CO-092; Ex. CO-055; Ex. MET-DEN-021; Ex. MET-DEN-022; Ex. MET-DEN-023; Ex. MET-DEN-024; Ex. MET-DEN-025; Ex. MET-DEN-026; Ex. MET-DEN-033; Ex. NV-040; Ex. NV-041; Ex. NV-055; Ex. NV-056; Ex. AGY-ST-LABOR-WORKPLACE-040; Ex. MET-LAS-006; Ex. MET-LAS-007; Ex. MET-LAS-009; Ex. MET-LAS-019; Ex. MET-LAS-026; Ex. AZ-044; Ex. AZ-045; Ex. AZ-078; Ex. AZ-079; Ex. AZ-080; Ex. AZ-081; Ex. AZ-082; Ex. AZ-083; Ex. AZ-084; Ex. AGY-TRIBAL-040; Ex. UT-045; Ex. ID-046; Ex. ID-030; Ex. ID-064; Ex. ID-072; Ex. MT-072; Ex. MT-071; Ex. MT-042; Ex. AK-030; Ex. AK-031; Ex. HI-025; Ex. MET-HNL-032; Ex. MET-HNL-033; Ex. MET-HNL-035; Ex. MET-HNL-037.

Washington: Proclamation 20-24.2 conditioned every non-urgent procedure on the whole quarter; the Secretary of Health's Order 20-03.3 of June 29 (effective June 30) required face coverings in health care settings, 20-03.4 required face coverings indoors statewide from August 23 and 20-03.5 extended the requirement to large outdoor events from September 13, infection-prevention controls that the Labor and Industries rules carried into every workplace; Proclamation 21-14 of August 9, amended August 20 and September 27, required every health care provider and every operator of a health care setting to be fully vaccinated by October 18, 2021 and prohibited the employment of unvaccinated personnel from that date; the Labor and Industries emergency rules of July 6, August 23 and September 20 required masks and exposure controls in every workplace and the rules of August 10 governed temporary worker housing; Proclamation 21-09 bridged the eviction moratorium to September 30; King County's masking orders of September 2 and its Verification of Vaccination Order of September 16, effective October 25, followed; Seattle required vaccination of City employees. Oregon: Executive Order 21-15 of June 25 rescinded EO 20-22 as of June 30 and continued the emergency to December 31, 2021; OAR 333-019-1015 of August 2 required face coverings in schools, a school infection-control condition on the workforce's children's attendance; OAR 333-019-1010 of August 5, replaced August 25, required every health care provider and staff member to be vaccinated by October 18, 2021 without a testing alternative; OAR 333-019-1025 of August 11 required face coverings indoors from August 13; OAR 333-019-1011 of August 20 required face coverings in health care settings, airborne-transmission controls on every indoor space and every clinic (Ex. SEC-02-079); Executive Order 21-29 of August 13 required vaccination of State employees (Ex. OR-047); Oregon OSHA's Administrative Order 12-2021 of September 14 adopted the face-covering requirements as workplace rules. New Mexico: the order of June 30 ended the county framework from July 1; Executive Order 2021-046 of July 30 continued the emergency; the order of August 17 reinstated indoor face coverings statewide and, in the same instrument, required vaccination of hospital, congregate-care and school workers (Ex. NM-068); the orders of September 15 extended both. Colorado: the Fourth, Fifth and Sixth Amended Public Health Orders 20-38 governed face coverings and health care settings month by month; the Seventh and Eighth Amended PHO 20-20 governed long-term care; the emergency rule of August 30 required every worker in a licensed health facility to receive a first dose by September 30, 2021 and to be fully vaccinated by October 31, 2021; Denver adopted each State order and required vaccination of hospital, clinic, long-term care, school and City personnel by September 30 by its orders of August 2 and September 1, and required masks in child care, an infection-prevention condition on the workforce's child care, from August 17; Boulder County required indoor face coverings from September 3, an airborne-transmission control that reached every clinic in the county. Nevada: Directive 046 of July 20 amended the health care licensing directive; Directive 047 of July 27 reinstated indoor face coverings from July 30 in every county of substantial or high transmission, an airborne-transmission control; Nevada OSHA enforced it in every workplace; the Board of Health's emergency regulation of August 20 and action of September 10 required vaccination of the staff of covered facilities by November 1; Clark County required masks of its employees and reinstated them in the courts, infection-prevention controls on the public offices and courtrooms a practice's staff use. Arizona: Executive Order 2021-16 of July 2 scheduled the expiration of the remaining orders, keeping Executive Orders 2020-12, 2021-05, 2021-06, 2021-09, 2021-10 and 2021-15 in force to September 29, and Executive Order 2021-18 of August 16 prohibited State-employee mandates; the Navajo Nation's orders of June 18 through August 12 continued masks, gathering limits and reopening status; the Mescalero Apache Tribe's EO 21-05 of August 19 re-imposed masks and closures. Utah: HB 1007 prohibited school and local mask requirements. Idaho: the proclamation of June 18 continued the emergency; EO 2021-11 of August 31 activated the Guard for the hospitals; crisis standards of care were activated September 7 and expanded statewide September 16 (Ex. ID-072), which is to say the State ordered its hospitals to ration care and every practice that referred to them referred into rationed care. Montana: HB 702 prohibited vaccination-status discrimination; the Department's letter of July 28 and emergency rule of August 31 construed and implemented its health care exemption. Alaska: the public health emergency order of May 1 continued the flexibilities; Addendum No. 1 of September 21 activated crisis standards of care. Hawaii: the Twenty-First Proclamation and the Emergency Proclamation of August 5 required vaccination or testing of State and county employees and continued the indoor face-covering requirement, an airborne-transmission control on every indoor public space including every clinic; Executive Orders 21-05 and 21-06 of August 10 and September 1 limited gatherings and capacity; Honolulu's orders of July 2 through September 17 imposed Safe Access Oahu from September 13. Status: Proclamation 20-24.2, Order 20-03.3, EO 21-15, the Fourth Amended PHO 20-38 and Seventh Amended PHO 20-20, the Twenty-First Proclamation, HB 702, HB 1007, the June 18 Idaho proclamation, Arizona's Executive Orders 2020-12, 2021-05, 2021-06, 2021-09, 2021-10 and 2021-15 as continued by Executive Order 2021-16 to September 29, the Navajo orders and the Alaska order in force July 1, 2021; on September 30, 2021 each chain was in force in its then-current instrument (Proclamation 20-24.2; Orders 20-03.4 and 20-03.5; Proclamation 21-14.2; OAR 333-019-1010 as replaced August 25; OAR 333-019-1025 and 333-019-1011; the Sixth Amended PHO 20-38 and Eighth Amended PHO 20-20; the Colorado Board of Health rule; the September 15 New Mexico orders; Directives 046 and 047 and the Nevada Board of Health regulation; the August 5 Hawaii proclamation with Executive Orders 21-05 and 21-06; the August 12 Navajo orders and the Mescalero Apache Tribe's EO 21-05), the earlier instruments in each chain (Ex. CO-041; Ex. CO-053; Ex. WA-070; Ex. OR-046; Ex. ID-046; Ex. AZ-078; Ex. AZ-079; Ex. AZ-081) having been superseded within the quarter by the successors named and Arizona's six continued orders having expired September 29. Functions: CL, PR, HR, WF, CB, OF, FD, SC.¹⁸⁹

B-9. The Northeast

Exhibits: Ex. CT-052; Ex. CT-049; Ex. CT-050; Ex. CT-051; Ex. CT-054; Ex. CT-055; Ex. CT-056; Ex. MA-050; Ex. MA-054; Ex. MA-067; Ex. MA-068; Ex. MA-070; Ex. MA-069; Ex. AGY-ST-HEALTH-SUBORDERS-116; Ex. AGY-ST-HEALTH-SUBORDERS-122; Ex. AGY-ST-HEALTH-SUBORDERS-118; Ex. AGY-ST-HEALTH-SUBORDERS-119; Ex. AGY-ST-HEALTH-SUBORDERS-120; Ex. AGY-ST-LABOR-WORKPLACE-009; Ex. AGY-ST-LABOR-WORKPLACE-042; Ex. MET-BOS-013; Ex. MET-BOS-014; Ex. MET-BOS-063; Ex. MET-BOS-036; Ex. RI-071; Ex. SEC-02-071; Ex. RI-072; Ex. RI-054; Ex. RI-055; Ex. RI-059; Ex. RI-060; Ex. RI-066; Ex. PA-025; Ex. PA-101; Ex. PA-038; Ex. PA-041; Ex. PA-042; Ex. AGY-ST-HEALTH-SUBORDERS-068; Ex. AGY-ST-HEALTH-SUBORDERS-007; Ex. AGY-ST-HEALTH-SUBORDERS-008; Ex. AGY-ST-HEALTH-SUBORDERS-009; Ex. AGY-ST-HEALTH-SUBORDERS-011; Ex. PA-046; Ex. PA-047; Ex. PA-048; Ex. MET-PHL-018; Ex. MET-PHL-019; Ex. MET-PHL-020; Ex. MET-PHL-021; Ex. MET-PHL-022; Ex. MET-PHL-065; Ex. ME-005; Ex. NH-064; Ex. DE-041; Ex. DE-044; Ex. DE-046; Ex. DE-047; Ex. DE-055; Ex. DE-061; Ex. DE-062; Ex. DE-063; Ex. DE-064; Ex. MD-073; Ex. MD-056; Ex. MD-059; Ex. MD-060; Ex. MD-061; Ex. MET-DCM-023; Ex. MET-DCM-024; Ex. MET-DCM-025; Ex. DC-021; Ex. DC-057; Ex. DC-077; Ex. DC-075; Ex. DC-076.

Connecticut: the DPH universal-masking rule for health care settings, an infection-prevention requirement on every clinical setting, ran to August 7 and the DPH order of that date replaced it; EO 13 of July 19 continued the emergency; EO 13A of August 5 authorized municipal mask mandates and required face coverings in health care and congregate settings, infection-prevention controls on every clinical and congregate setting; EO 13B of August 6 required vaccination of long-term care staff by September 7; EO 13D of August 19 required vaccination or testing of State employees and school staff; EOs 13F and 13G of September 3 and 10 continued and refined the requirements through September 30 and beyond. Massachusetts: the health care face-covering order of May 28, reissued June 14, an infection-prevention control on every clinical setting, ran the whole quarter; Order 2021-4 of August 4 required vaccination of long-term care staff by October 10; EO 595 of August 19 required vaccination of executive-branch employees by October 17; 101 CMR 23.00 of August 13 and 105 CMR 159.000 of September 8 required vaccination of home care workers and of the staff of hospice, assisted living, adult day health and other licensed settings; the Commissioner's orders of July 30, August 20, August 26, September 2 and September 15 governed licensure and requirements in licensed settings; the emergency paid sick leave act ran to September 30 and was extended; Boston, Somerville and Cambridge reinstated indoor face-covering requirements from August 19 through September 15, airborne-transmission controls on every indoor public space including every clinic. Rhode Island: 216-RICR-50-15-7 ran to August 31; 216-RICR-20-15-8 of August 17 required every worker in a licensed health care facility to be vaccinated by October 1, 2021 without a testing alternative; EOs 21-86 and 21-87 of August 19 and 21-93, 21-94 and 21-100 of September 1 through 30 reinstated face coverings in schools, a school infection-control condition on the workforce's children's attendance, and continued the emergency. Pennsylvania: the elective-reduction order ran to August 23; the skilled nursing reporting order of May 26 ran the whole quarter; Act 21 continued the licensure waivers and regulatory suspensions to September 30 and Act 73 extended them; the antigen and general reporting orders ran the whole quarter; the updated order of July 26 and the orders of August 13 and September 21 governed reporting and facilities; the hospital daily-reporting order was amended August 13; the school face-covering order of August 31, a school infection-control condition on the workforce's children's attendance, took effect September 7; the Department's Health Alert Network advisories of April 9, September 16 and September 21 stated the infection-prevention practices and work restrictions applied in health care settings under those orders; Philadelphia reinstated face coverings and imposed vaccination-or-mask requirements, exposure-control conditions on every indoor setting, from August 11 through 16 and required vaccination of contractors from September 14. Maine: EO 16 § I(F) ran to August 30; EO 40 of June 30 scheduled the expirations; the emergency rule of August 12 required vaccination of health care workers, with the final dose due by September 17 and exclusion of unvaccinated staff from the worksite from October 1. Vermont: EO 06-21 and Emergency Rule H-2021-01-E ran the whole quarter. New Hampshire: the Department of Health and Human Services' self-isolation and self-quarantine directives under RSA 141-C ran the whole quarter. Delaware: the Twenty-Ninth Modification ran to July 13; the public health emergency of July 12 followed; the emergency Secretary's orders of June 17 and 25 took effect July 1 and those of August 13, September 8 and September 10 required vaccination or testing of the personnel of hospitals, home health agencies, nursing facilities, personal assistance agencies and other licensed settings from September 30. Maryland: the transition plan ran to August 15; the Amended Directive and Order Regarding Various Healthcare Matters of June 15 ran the whole quarter to December 31; the vaccination and nursing home orders of August 5, August 18 and September 8 required vaccination or testing of the staff of nursing homes and hospitals from September 1; Montgomery County required indoor face coverings, an airborne-transmission control on every indoor public space in the County, from August 7 under its Board of Health regulation. District of Columbia: Mayor's Order 2021-096 of July 24 continued the emergency; Mayor's Order 2021-097 of July 29 reinstated indoor face coverings from July 31, an airborne-transmission control on every indoor public space; the Mayor's and DC Health's announcements of August 16 and September 20 recorded the health care worker and District employee vaccination requirements and their deadlines of September 30, 2021 (first dose, health care workers) and September 19, 2021 (District employees, with weekly testing thereafter) (requirements whose own instruments the Library records as not retrieved). Status: the Connecticut rule, Massachusetts' orders of May 28 and June 14, Rhode Island's regulation and EO 21-26, Pennsylvania's orders, Maine's § I(F), Vermont's, New Hampshire's, Delaware's Twenty-Ninth Modification and Maryland's directive and plan in force July 1; on September 30 the instruments named above in their then-current form, other than those whose end dates within the quarter are stated, the superseded predecessors being Connecticut's EO 13B and 13D (to September 3 and 10, then 13F and 13G) and the Maryland directives of June 15, August 5 and August 18 (to August 18 and September 8, then those of August 18 and September 8); the Health Alert Network advisories are stated as facts and circumstances and are not in this inventory. Functions: PR, CL, HR, WF, OF, DX, CB.¹⁹⁰

B-10. The South

Exhibits: Ex. TX-032; Ex. TX-038; Ex. TX-040; Ex. TX-041; Ex. ECO-C-070; Ex. AGY-ST-HEALTH-BOARDS-014; Ex. KY-001; Ex. WV-064; Ex. NC-030; Ex. NC-032; Ex. LA-053; Ex. MET-DFW-028; Ex. MET-DFW-030; Ex. MET-DFW-031; Ex. MET-HOU-038; Ex. FL-063; Ex. FL-032; Ex. FL-033; Ex. GA-042; Ex. GA-061; Ex. KY-052; Ex. KY-054; Ex. KY-058; Ex. KY-059; Ex. LA-038; Ex. LA-040; Ex. LA-054; Ex. MET-MSY-027; Ex. MET-MSY-029; Ex. MET-MSY-032; Ex. MET-MSY-063; Ex. MET-MSY-071; Ex. MET-MSY-072; Ex. NC-058; Ex. NC-059; Ex. NC-072; Ex. TN-034; Ex. TN-035; Ex. TN-050; Ex. TN-051; Ex. AL-052; Ex. AL-078; Ex. AR-017; Ex. AR-073; Ex. VA-041; Ex. VA-042; Ex. VA-044; Ex. VA-045; Ex. AGY-ST-LABOR-WORKPLACE-001 (rulemaking record; context); Ex. WV-063; Ex. WV-067 (effective Oct. 1, 2021; end date only); Ex. MS-055 (press report; end-date evidence); Ex. OK-042; Ex. OK-043; Ex. SC-045; Ex. SC-062; Ex. SC-054.

Texas: GA-38 of July 29 prohibited local mask and vaccination mandates while continuing the disaster, renewed August 29; Dallas County's orders of August 11 through 16 and the Harris County health authority's order of August 12 required face coverings in schools, child care and businesses, airborne-transmission controls on every indoor business and school infection-control conditions on the workforce's children's attendance (Dallas County's with the quarantine and exclusion rules applied under them), in defiance of GA-38 and were litigated through the quarter; the Supreme Court's Thirty-Ninth and Fortieth Emergency Orders governed every court proceeding to October 1. Florida: chapter 2021-8 prohibited vaccination-documentation requirements from July 1; EO 21-175 of July 30 and the Department of Health's rules of August 6 and September 22 governed face coverings and quarantine in schools, school infection-control conditions on the workforce's children's attendance with the quarantine and exclusion rules applied under them; § 1 of DOH Emergency Order 20-015 ran the whole quarter (Ex. AGY-ST-HEALTH-BOARDS-014). Georgia: the Economic Recovery orders of June 30, August 19 and September 20 continued the emergency and its health care provisions and barred local mask mandates on private businesses. Kentucky: the health care face-covering requirement that EO 2021-386 ¶ 4 preserved, an infection-prevention control on every clinical setting, ran to September 7; EO 2021-585 of August 10 and 902 KAR 2:213E of August 12 required face coverings in schools and child care, school infection-control conditions on the workforce's children's attendance and child care, until HJR 1 of September 7 terminated the executive order and SB 1 of September 9 voided the regulation; the Supreme Court's Administrative Orders 2021-27 and 2021-28 governed the courts. Louisiana: Proclamations 137, 167 and 181 JBE 2021 required indoor face coverings statewide from August 4 through the quarter, an airborne-transmission control on every indoor space open to the public including every clinic; Emergency Rule 46 of August 12 governed surge transfers; the LDH school reporting order of September 1, 2020 ran the whole quarter and the decision tree of August 3 stated the protocol schools applied under it; New Orleans required face coverings from July 31 and proof of vaccination or a negative test for indoor venues from August 16, exposure-control conditions on every indoor venue; Jefferson Parish required face coverings from August 3, an airborne-transmission control on every indoor space open to the public; the 24th Judicial District Court governed its courts. North Carolina: EO 220 required face coverings in schools and health care settings to July 30, infection-prevention controls on every clinical setting and on the schools the workforce's children attended; EOs 224, 229 and 232 required vaccination or testing of State employees and continued the emergency; S.L. 2021-130 of August 30 required every local board to adopt a face-covering policy, and the toolkit's quarantine rules were applied under them. Tennessee: EOs 82 and 83 continued the emergency and governed face coverings in schools, a school infection-control condition on the workforce's children's attendance; the Supreme Court's orders of May 14 and August 26 governed the courts. Alabama: the emergency proclaimed August 13 ran through the quarter; SB 267 prohibited vaccination-proof requirements. Arkansas: EO 21-14 of July 29 declared a new emergency to September 27; the fourteen-day quarantine requirement ran; Act 1002 was enjoined August 6. Virginia: Executive Directive 18 required vaccination or testing of State employees from September 1; the Commissioner's order of August 12 required face coverings in schools, a school infection-control condition on the workforce's children's attendance; the workplace standard as amended September 8 governed every workplace; the judicial emergency orders of August 4 and September 20 governed the courts. West Virginia: the resumption conditions of EOs 28-20 and 30-20 remained in force under EO 12-21 ¶ 2 until EO 23-21 terminated them effective October 1, 2021. Mississippi: the State of Emergency ran to November 20, 2021 (Ex. MS-055, the contemporary press report of the Governor's announcement). Oklahoma: EO 2021-16 and SB 658 prohibited school mask and vaccination requirements from July 1. South Carolina: Act 94 prohibited mask mandates in schools and State facilities from July 1; the trial-court order ran to August 27; the DHEC exclusion list of August 24 fixed the conditions of exclusion for the school year. Status: in force July 1, 2021: GA-34, SB 968 (Ex. TX-032), chapter 2021-8, § 1 of DOH Emergency Order 20-015 (Ex. AGY-ST-HEALTH-BOARDS-014), EO 06.30.21.02 (Ex. GA-042), EO 2021-386 ¶ 4 and the Kentucky emergency (Ex. KY-001), EO 12-21 ¶ 2 and EO 13-21 (Ex. WV-063; Ex. WV-064), the Mississippi State of Emergency (end date as reported in Ex. MS-055), EO 2021-16 and SB 658 (Ex. OK-042; Ex. OK-043), Act 94 and the trial-court order (Ex. SC-045; Ex. SC-054), North Carolina's EO 220 (Ex. NC-030), Louisiana's school reporting order (Ex. LA-053) and the Virginia workplace standard; in force September 30, 2021: every instrument named above that had not ended by its stated date (Arkansas' EO 21-14, September 27; Kentucky's health care face-covering requirement, September 7; North Carolina's EO 220, July 30; Florida's rule 64DER21-12, superseded September 22) together with the instruments issued inside the quarter on the dates stated (the DHEC exclusion list of August 24, Ex. SC-062, being the content applied under South Carolina's school-exclusion regulation and stated as a fact and circumstance). Functions: CB, WF, HR, CL, OF.¹⁹¹

B-11. The Midwest

Exhibits: Ex. MI-080; Ex. NE-067; Ex. MET-DET-005; Ex. MET-DET-013; Ex. MET-DET-015; Ex. MET-DET-046; Ex. MN-041; Ex. MN-042; Ex. MN-044; Ex. MN-045; Ex. MN-053; Ex. MN-054; Ex. MET-MSP-018; Ex. MET-MSP-019; Ex. MET-MSP-020; Ex. MET-MSP-041; Ex. MET-MSP-044; Ex. MET-MSP-051; Ex. MET-MSP-062; Ex. OH-049; Ex. OH-071; Ex. OH-094; Ex. OH-095; Ex. IN-071; Ex. IA-039; Ex. IA-040; Ex. IA-041; Ex. IA-046; Ex. IA-047; Ex. IA-056; Ex. MO-020; Ex. MET-STL-020; Ex. MET-STL-021; Ex. MET-STL-022; Ex. MET-STL-069; Ex. MET-STL-067; Ex. MET-STL-083; Ex. NE-050; Ex. NE-068; Ex. ND-082; Ex. MET-MKE-023; Ex. MET-MKE-024; Ex. WI-024 (2022 decision; context).

Michigan: the residential care order of May 21 ran the whole quarter; the Supreme Court's administrative orders governed the courts to July 26; Ottawa, Oakland and Wayne Counties required face coverings in schools from August 6, 24 and 27, school infection-control conditions on the workforce's children's attendance; Detroit's order of August 25 and the school district's plan governed the City. Minnesota: the peacetime emergency ended July 1 by the Legislature's act, which preserved named health care provisions; the Judicial Branch orders of June 28 and July 30 governed the courts; the State's vaccination-or-testing policy for its employees issued August 11 for September 8; Minneapolis and Saint Paul continued their emergencies and reinstated masks in City facilities from August 3 and 20, infection-prevention controls on the public offices a practice's patients and staff use; Ramsey County and the University of Minnesota did the same. Ohio: the amended testing orders for nursing homes and assisted living ran the whole quarter; the Department's K-12 quarantine instructions of August 31 fixed, as a matter of fact and circumstance, when exposed students were sent home; Dayton required indoor face coverings from September 17, an airborne-transmission control on every indoor public space in the city. Indiana: EOs 21-17, 21-19 and 21-24 continued the emergency and its health care directives month by month; the control measures under 410 IAC 1 of July 19 governed isolation, quarantine and reporting for every provider. Iowa: the proclamations of July 23, August 19 and September 17 continued the emergency and its health care provisions; HF 847 and HF 889 prohibited local mask mandates and vaccination-proof requirements; the Supreme Court's order of August 27 governed the courts. Missouri: EO 21-09 of August 27 continued the health care flexibilities; St. Louis City and County required indoor face coverings from July 26, airborne-transmission controls on every indoor public space including every clinic, and the City's proclamation of July 23 declared a new emergency; the County's quarantine and notification orders governed reporting. Kansas: the adult care home testing order of June 18 ran the whole quarter and the travel quarantine mandate ran the whole quarter. Nebraska: EO 20-12 ran to August 27 and EO 21-12 of August 26 continued the health care flexibilities to December 31; Lincoln and Lancaster County required indoor face coverings from August 26, an airborne-transmission control on every indoor public space in the county. North Dakota: HB 1465 prohibited statewide mask mandates. Wisconsin: the Dane County Face Covering Emergency Orders of August 17 and September 9, 2021 (Ex. MET-MKE-023; Ex. MET-MKE-024), airborne-transmission controls on every indoor public space in Dane County including every clinic, governed Madison practices from August 19 through the end of the quarter, as the Supreme Court later confirmed (Ex. WI-024). Status: in force July 1, 2021: Michigan's residential care order and testing order and the Supreme Court's administrative orders to July 26 (Ex. MI-080); Ohio's amended testing orders (Ex. OH-049; Ex. OH-071); Indiana's EO 21-17; Iowa's disaster proclamation then in force (succeeded from July 23 by Ex. IA-039), HF 847 and HF 889 (Ex. IA-046; Ex. IA-047); Kansas' testing order and quarantine mandate; Nebraska's EO 20-12 and the orders EO 21-09 left in force (Ex. NE-050; Ex. NE-067); Minnesota's terminating act (to 11:59 p.m. July 1), chapter 8 and the Judicial Branch order of June 28 (Ex. MN-041; Ex. MN-042; Ex. MN-053); in force September 30, 2021: the same instruments not ended by their stated dates, together with the instruments issued inside the quarter on the dates stated. Functions: CB, WF, HR, DX, CL.¹⁹²

B-12. The boards, sub-orders, tribal and territorial governments, military installations, labor statutes and courts

Exhibits: Ex. AGY-ST-HEALTH-BOARDS-039; Ex. AGY-ST-HEALTH-BOARDS-040; Ex. AGY-ST-HEALTH-BOARDS-041; Ex. AGY-ST-HEALTH-BOARDS-042; Ex. AGY-ST-HEALTH-BOARDS-043; Ex. AGY-ST-HEALTH-SUBORDERS-041; Ex. AGY-ST-HEALTH-SUBORDERS-042; Ex. AGY-ST-HEALTH-SUBORDERS-043; Ex. AGY-ST-HEALTH-SUBORDERS-044; Ex. AGY-ST-HEALTH-SUBORDERS-045; Ex. AGY-ST-HEALTH-SUBORDERS-046; Ex. AGY-ST-HEALTH-SUBORDERS-047; Ex. AGY-ST-HEALTH-SUBORDERS-048; Ex. AGY-ST-HEALTH-SUBORDERS-049; Ex. AGY-ST-HEALTH-SUBORDERS-050; Ex. AGY-TRIBAL-025; Ex. AGY-TRIBAL-040; Ex. AGY-TERRITORIES-033; Ex. AGY-DEFENSE-GUARD-023; Ex. AGY-ST-LABOR-WORKPLACE-003; Ex. AGY-ST-LABOR-WORKPLACE-004; Ex. AGY-ST-LABOR-WORKPLACE-046; Ex. FED-298; Ex. FED-299; Ex. FED-301; Ex. FED-307; Ex. FED-308; Ex. FED-313; Ex. FED-337; Ex. ECO-C-136. The California DCA waivers of July 1, July 26, August 31 and September 28 modified license renewal for every health care profession; Delaware's ten emergency Secretary's orders of August 10, September 8 and September 10, each effective September 30, amended the licensing regulations of every class of licensed facility; the Mescalero Apache Tribe's orders and the Navajo Nation's orders governed the practices that serve the reservations; Puerto Rico's OE-2021-062 of August 5 required vaccination or testing of health care workers to November 15; the Stafford Act memorandum of August 17 funded the National Guard deployments to hospitals in Idaho, Alaska, Oregon and elsewhere; the paid-leave statutes of New York, Colorado and Massachusetts and the wage rules of Colorado governed leave for quarantined staff; and the federal district courts' general and standing orders of June 21 through September 15, 2021 governed the courthouses. Status: in force July 1 (the DCA waivers, the tribal orders, the labor statutes, the court orders then in force) and September 30 (all of the above). Functions: HR, WF, CB, OF.

C. How the instruments reached the functions

CL

The clinical intake and waiting room function was governed on every day of the quarter by the ETS's requirement that points of entry be limited and monitored, that every patient and visitor be screened and triaged, that persons be kept six feet apart and that barriers stand at reception, and by the health care face-covering requirements, infection-prevention controls on every clinical setting, that California, New York (under Subpart 66-3 to August 27 and under 10 NYCRR 2.60 and the Commissioner's Determination thereafter), New Jersey, Illinois, Washington, Oregon, Massachusetts, Connecticut, Rhode Island, Maryland, Pennsylvania, New Mexico, Nevada, Colorado, Kentucky and the District of Columbia preserved or reinstated; a waiting room built for twelve seated four, and a practice that could not screen every non-employee before entry was inside the federal standard in full.¹⁹³

PR

The procedures and elective visits function was conditioned by New Jersey's Executive Directives on every elective procedure in every hospital and ambulatory surgery center, by Pennsylvania's elective-reduction order in the regions of low capacity to August 23, by Washington's Proclamation 20-24.2, by West Virginia's resumption conditions, and by the ETS in every procedural suite; the proceduralists whose privileges were at hospitals under Idaho's, Alaska's and Louisiana's surge orders referred into rationed care.¹⁹⁴

DX

The diagnostics and laboratory function was governed by the reporting orders of Pennsylvania, Indiana and their counterparts, by the ETS's log and reporting rules, and by the FDA's revocation of the respirator authorizations on which the laboratory's staff had relied.¹⁹⁵

TM

Telehealth continued under the section 1135 waivers, the OCR enforcement discretion, the DEA telemedicine permission and Illinois' monthly re-issued authorizations; the function existed because the orders permitted it and was shaped by the orders that permitted it.¹⁹⁶

FD

The front desk administered the screening scripts the ETS and the State orders required, the vaccination-status verification the California, New Jersey, Illinois, Washington, Oregon, Rhode Island, Maine, Maryland, Colorado and Denver orders required of the practice's own staff, and the proof-of-vaccination regimes of New York City, San Francisco, New Orleans and Honolulu that governed the practice's patients' movements.¹⁹⁷

OF

Billing and administration carried the ETS's written plan, hazard assessment, log, training and reporting obligations, § 3205's program and exclusion-pay obligations, the HERO Act plan, and the recordkeeping the vaccination orders required.¹⁹⁸

SC

PPE and supplies were governed by the scarce-materials designation to November 15, by the FDA's revocations effective June 30 and July 6, 2021 that removed the lawful basis for the decontaminated and imported respirators in the practice's stock, and by the ETS's respirator and PPE requirements.¹⁹⁹

HR

Hiring, credentialing and training were governed by the vaccination-or-testing conditions on the practice's own workforce in California (August 23 and September 30), New Jersey (September 7), Illinois (September 19), New York (September 27 and October 7), Washington and Oregon (October 18), Rhode Island (October 1), Maine (September 17), Maryland (September 1), Delaware (September 30), Colorado (September 30 and October 31), Nevada (November 1), the District of Columbia (September 30), Denver and Los Angeles County (September 30), Puerto Rico and, for practices serving the VA and the armed forces, the federal mandates; by the DCA, Act 21 and Executive Order 4 licensure modifications; and by the ETS's training and medical removal rules.²⁰⁰

WF

Workforce availability was governed by the ETS's and the State standards' exclusion of exposed and infected staff, by the school mask, quarantine and exclusion orders that determined whether the staff's children were in school, by the conveyance order on every transit commute, by the quarantine mandates of Kansas and Arkansas, and by the vaccination conditions that removed unvaccinated staff from the schedule on the dates named.²⁰¹

CB

The practice's counterparties were under orders throughout: the hospitals under the CMS rules, the surge orders and the crisis standards; the nursing homes under the CMS vaccination and visitation rules and the Ohio, Michigan, Kansas, Maryland and New York orders; the schools under the face-covering and quarantine orders of every region; the courts under the standing orders; the employers whose workers the practice treated under the federal contractor and employee orders; the landlords under the eviction orders; and the patients under the face-covering, proof-of-vaccination and travel orders.²⁰²

MK

Marketing and outreach were governed by the gathering and capacity limits of Hawaii, Colorado and the metropolitan orders and by the proof-of-vaccination regimes that governed the venues at which outreach occurs.²⁰³

D. Continuing suspension

The clause asks whether the operation "is fully or partially suspended during the calendar quarter due to orders." The adverbial phrase "during the calendar quarter" modifies "suspended"; it does not modify "orders," and Congress did not write "due to orders in effect during the calendar quarter." An operation that an order suspended in March 2020 and that the order's own reopening steps had not restored by July 1, 2021 was suspended during the third quarter of 2021 due to that order, because but for the order it would have been operating normally on July 1. Tri-State holds that a suspension includes a "delay" and that the statute's causation is but-for causation; a delay that ran into the quarter is a suspension during the quarter.²⁰⁴ The Notice's Q&A-22 recognizes the same thing from the other direction: an employer whose operation was suspended for part of a quarter is an eligible employer for the whole of it, and the Notice's transition language treats an order that ends mid-quarter as operating through the quarter's end.²⁰⁵

The arithmetic

The orders' own steps fix how long the restoration took. A Texas practice whose procedures were prohibited on March 22, 2020 operated under capacity-reservation conditions from May 1, 2020, under county prohibitions from June 26, 2020, under trauma-service-area triggers from September 17, 2020, and was released from them on March 10, 2021: 353 days under procedure orders, with the release 113 days before the quarter began (Ex. SEC-02-011; Ex. SEC-02-013; Ex. SEC-02-014; Ex. SEC-02-015; Ex. SEC-02-016). A New Jersey practice whose procedures were suspended on March 27, 2020 operated under the Department of Health's directives from May 26, 2020 on every day of the third quarter of 2021 and was required to have every worker vaccinated or tested by September 7, 2021: 529 days from the suspension to the new condition, with no day in between on which the practice operated free of a health care order (Ex. SEC-02-017; Ex. SEC-02-018; Ex. NJ-084; Ex. NJ-085; Ex. SEC-02-019). A Minnesota practice under EO 20-09 from March 23, 2020 and EO 20-51 from May 10, 2020 was released from the written-plan requirement on May 27, 2021, thirty-five days before the quarter (Ex. SEC-02-022; Ex. SEC-02-023). A Pennsylvania practice whose non-life-sustaining operations were closed on March 19, 2020 and whose hospital partners were ordered to halve elective procedures on November 23, 2020 was released from the latter on August 23, 2021, fifty-four days into the quarter (Ex. PA-002; Ex. SEC-02-037; Ex. PA-025; Ex. PA-101). An Oregon practice under EO 20-10 from March 23, 2020 and EO 20-22 from May 1, 2020 was released on June 30, 2021, the day before the quarter began, and was under the Oregon Health Authority's vaccination rule from August 5 and its face-covering rules from August 13 and 20, airborne-transmission controls on every indoor space and every clinic (Ex. SEC-02-031; Ex. SEC-02-032; Ex. OR-043; Ex. OR-046; Ex. OR-048). A Washington practice under Proclamation 20-24 from March 19, 2020 was under Proclamation 20-24.2 on every day of the quarter and under Proclamation 21-14 from August 9 (Ex. WA-015; Ex. WA-049; Ex. SEC-02-030). A Maryland practice under the March 23, 2020 directive was under the June 15, 2021 directive on every day of the quarter (Ex. MD-040). A Maine practice under EO 16 from March 20, 2020 was under § I(F) to August 30, 2021 (Ex. ME-005). A West Virginia practice under EO 16-20 from April 1, 2020 was under the EO 28-20 and 30-20 conditions to October 1, 2021 (Ex. WV-014; Ex. WV-063; Ex. WV-067). A California practice under EO N-33-20 from March 19, 2020 was released from the stay-at-home order on June 15, 2021, sixteen days before the quarter, and was under the health care face-covering requirement, an infection-prevention control on every clinic, on every day of the quarter and the vaccination orders from July 26 (Ex. SEC-02-073; Ex. SEC-02-046). The practices that these orders governed had discharged or furloughed staff, cancelled and rebooked appointments under orders that changed on days' notice for fifteen months (the Texas, Pennsylvania and New Jersey sequences above), exhausted and rebuilt PPE inventories under allocation, converted rooms to telehealth and back, and renegotiated hospital privileges, payer contracts and leases; the orders' own end dates show that the restoration had not been completed when the quarter began, and in Pennsylvania, Maine, Washington, Maryland, New Jersey and West Virginia the orders that compelled the dismantling were still in force on July 1.²⁰⁶

The four pathways

Continuing suspension reaches the third quarter of 2021 by four independent routes, each sufficient: (1) the orders in force on every day of the quarter (the ETS, the conveyance and border orders, the CMS rules, the States' health care face-covering and facility orders, Washington's Proclamation 20-24.2, Maryland's directive, New Jersey's Directives, West Virginia's conditions); (2) the orders issued inside the quarter (the vaccination-or-testing conditions of fifteen States, the District of Columbia and Puerto Rico on health care workers and of North Carolina, Virginia, Minnesota and Hawaii on public employees, the indoor face-covering reinstatements of Louisiana, Nevada, Oregon, Washington, Illinois, New Mexico and the District of Columbia and Hawaii's continuing statewide requirement, airborne-transmission controls on every indoor public space including every clinic, the school orders, the metropolitan orders); (3) the orders whose own end dates fell inside the quarter (Pennsylvania's August 23, Maine's August 30, Delaware's July 13, Rhode Island's August 31, Kentucky's September 7, Nebraska's August 27, Arkansas' September 27) and the orders released within weeks before it whose restoration steps ran into it (Minnesota's May 27, Louisiana's May 24, Oregon's June 30, California's June 15, New Jersey's June 4, Illinois' June 11); and (4) the counterparty orders on the hospitals, nursing homes, schools, courts, transit systems and landlords on which the practice's operation depends.²⁰⁷

E. The Service's grounds for the quarter, answered

No orders were in effect

There were no government orders related to COVID-19 in effect during the quarter.

The orders had lifted; the effects were "residual"

The orders had lifted before the quarter began; any effect was a residual delay of a prior quarter's order.

The instruments were guidance

The instruments relied on were guidance, recommendations or best practices, not orders.

The employer was essential and remained open

The employer was designated essential and remained open.

The orders reached customers, not the business

The orders affected the employer's customers, not the employer.

The modifications were nominal

The required modifications had only a nominal effect on operations.

The vaccination orders did not limit commerce

Vaccination orders did not limit commerce, travel or group meetings.

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 OSHA Healthcare Emergency Temporary Standard and its enforcement directives, the federal conveyance, entry and border orders, the CMS facility rules and the FDA revocations, the health care worker vaccination-or-testing orders of California, New York, New Jersey, Illinois, Washington, Oregon, Rhode Island, Maine, Massachusetts, Connecticut, Maryland, Delaware, Colorado, Nevada, New Mexico, the District of Columbia and Puerto Rico and of Denver, Los Angeles County, Pasadena and New York City, the public-employee vaccination-or-testing orders of North Carolina, Virginia, Minnesota and Hawaii, the health care face-covering requirements of every State that preserved them and the indoor face-covering reinstatements of Louisiana, Nevada, Oregon, Washington, Illinois, New Mexico and the District of Columbia, Hawaii's continuing statewide requirement, and the reinstatements of Los Angeles County, the Bay Area, Chicago, Cook County, Philadelphia, Boston, St. Louis, Dallas County, New Orleans, Denver and their counterparts, Pennsylvania's elective-reduction order to August 23, Maine's health care order to August 30, Washington's Proclamation 20-24.2, Maryland's health care directive, New Jersey's Executive Directives, West Virginia's resumption conditions, the State workplace standards, the school, court, transit and facility orders on the industry's counterparties, and the preemption instruments and the local orders they contested (Ex. SEC-02-001; Ex. FED-080; Ex. FED-081; Ex. SEC-02-002; Ex. FED-020; Ex. FED-052; Ex. FED-207; Ex. FED-235; Ex. FED-094; Ex. AGY-FED-HEALTH-OTHER-049; Ex. SEC-02-045; Ex. SEC-02-046; Ex. SEC-02-038; Ex. SEC-02-019; Ex. SEC-02-051; Ex. SEC-02-030; Ex. OR-051; Ex. SEC-02-071; Ex. MA-067; Ex. CT-051; Ex. MD-060; Ex. DE-064; Ex. CO-055; Ex. NV-055; Ex. NM-068; Ex. DC-057; Ex. AGY-TERRITORIES-033; Ex. VA-045; Ex. MN-044; Ex. MET-DEN-023; Ex. MET-LA-023; Ex. MET-NYC-035; Ex. SEC-02-073; Ex. NJ-050; Ex. LA-038; Ex. NV-041; Ex. OR-048; Ex. WA-078; Ex. MET-LA-018; Ex. MET-SFO-010; Ex. MET-CHI-026; Ex. MET-PHL-019; Ex. MET-BOS-013; Ex. MET-STL-021; Ex. MET-DFW-028; Ex. MET-MSY-029; Ex. PA-025; Ex. PA-101; Ex. ME-005; Ex. WA-049; Ex. NJ-084; Ex. NJ-085; Ex. WV-063; Ex. SEC-02-047; Ex. ECO-B-120; Ex. PA-042; Ex. TX-040; Ex. OH-049; Ex. FL-063 and their counterparts in the State-by-State table and the metro table), caused a temporary delay, interruption and, for the unvaccinated portion of the workforce on the dates named, termination of a more than nominal portion of the operations of employers in this industry throughout the United States. They did so by governing every health care workplace under a federal standard that required screening at the door, distancing, barriers and paid removal of exposed staff; by conditioning the employment of the practice's own workforce on vaccination or testing by dates inside or immediately after the quarter; by requiring face coverings of staff and patients, as one of the infection-prevention controls on every clinical setting, in the States named and indoors everywhere in seven States and the District of Columbia and the largest metros; by continuing the procedure conditions of Pennsylvania, New Jersey, Washington, Maryland and West Virginia; and by governing the hospitals, nursing homes, schools, courts, transit systems and landlords on which the practice's operation depends.

What this analysis does not claim was in force

The proof for this quarter rests on the instruments listed in subpart B, each of which was in force on some day between July 1 and September 30, 2021, and on the continuing-suspension analysis of subpart D. It rests on none of the following, each of which had expired before July 1, 2021 or took effect after September 30, 2021, and this analysis does not claim that any expired order suspended anyone by its own force after its expiration: the statewide procedure prohibitions of March and April 2020 in every State (Ex. SEC-02-011; Ex. SEC-02-017; Ex. SEC-02-020; Ex. SEC-02-022; Ex. SEC-02-048; Ex. SEC-02-031; Ex. WA-015 and their counterparts in the State-by-State table); the stay-at-home and closure orders of 2020 and the winter of 2020-21 (California's Executive Order N-33-20 and its Regional Stay at Home Order; New York's Executive Order 202.6; Illinois' Executive Order 2020-10; Ex. PA-006; Michigan's Executive Order 2020-21 and their counterparts); Texas' GA-19 and GA-27, superseded September 17, 2020 by GA-31, and GA-31 and GA-32, rescinded March 10, 2021 (Ex. SEC-02-013; Ex. SEC-02-014; Ex. SEC-02-015; Ex. SEC-02-016); Minnesota's EO 20-51, rescinded May 27, 2021 (Ex. SEC-02-023); Louisiana's LDH procedure order, released May 24, 2021 (Ex. LA-047); Oregon's EO 20-22, rescinded June 30, 2021 (Ex. SEC-02-032; Ex. OR-043); Colorado's PHO 20-29, whose Thirteenth Amended version of April 9, 2021 was superseded April 16, 2021 by PHO 20-38; Massachusetts' curtailment order, rescinded March 1, 2021 (Ex. MA-066); Indiana's EO 20-50 and New Mexico's December 2020 order (Ex. IN-048; Ex. NM-043); Nebraska's November 2020 measures (Ex. NE-021); Arizona's EO 2020-36, rescinded March 25, 2021 (Ex. AZ-019); Kansas' EO 20-52, revoked March 31, 2021; North Dakota's EO 2020-05.1, ended April 30, 2021 (Ex. ND-006); New Hampshire's mandatory health care guidance, ended May 7, 2021 (Ex. NH-050; Ex. NH-051); Florida's Department of Health licensure orders after June 30, 2021 (Ex. AGY-ST-HEALTH-BOARDS-011; Ex. AGY-ST-HEALTH-BOARDS-012; Ex. FL-077); Alaska's Health Mandate 015, expired November 15, 2020 (Ex. AK-017); the Families First leave mandates, ended December 31, 2020 (Ex. FED-170); the FEMA allocation and export rule, ended June 30, 2021 (Ex. FED-078); OMB M-21-15's occupancy cap, lifted June 10, 2021 (Ex. FED-270; Ex. FED-271); the pre-vaccination visitation memoranda superseded April 27, 2021 (Ex. FED-154; Ex. FED-155); the CDC eviction order of June 24, 2021 after July 31 and the order of August 3, 2021 after the Supreme Court's stay of August 26, 2021 (Ex. FED-025; Ex. FED-026); Delaware's Twenty-Ninth Modification after July 13, 2021; Rhode Island's 216-RICR-50-15-7 after August 31, 2021 (Ex. RI-071); Pennsylvania's elective-reduction order after August 23, 2021 (Ex. PA-025; Ex. PA-101); Maine's § I(F) after August 30, 2021 (Ex. ME-005); Kentucky's EO 2021-585 after September 7, 2021 and 902 KAR 2:213E after September 9, 2021 (Ex. KY-052; Ex. KY-054); Arkansas' EO 21-14 after September 27, 2021 (Ex. AR-017); the Oregon, New York and New Jersey vaccination deadlines that fell after September 30, 2021, which are treated as conditions imposed inside the quarter and not as terminations inside it (Ex. OR-051; Ex. NY-071; Ex. NJ-057); West Virginia's EO 23-21, effective October 1, 2021, which is cited only as the instrument that fixes the end date of the paragraph 2 conditions (Ex. WV-067); and Executive Orders 14042 and 14043, whose compliance dates fell after September 30, 2021 (Ex. FED-063; Ex. FED-064). What remains after those exclusions is the inventory of subpart B, and it is sufficient on every day of the quarter.