Page:Azar v. Allina Health Services, 587 U.S. (2019) (slip opinion).pdf/22

2 simple. By using words with meanings that are well settled in the APA context, Congress made clear that the notice-and-comment requirement in the Medicare Act applies only to substantive, not interpretive, rules. The statutory language, at minimum, permits this interpretation, and the statute’s history and the practical consequences provide further evidence that Congress had only substantive rules in mind. Importantly, this interpretation of the statute, unlike the Court’s, provides a familiar and readily administrable way for the agency to distinguish the actions that require notice and comment from the actions that do not.

I begin with the specific language of the statute. There are, in my view, three relevant subsections that must be read together. The first, a general provision, has been part of the Medicare Act since Congress created the program in 1965. It says that the Secretary “shall prescribe such regulations as may be necessary to carry out the administration of the insurance programs.” 42 U. S. C. §1395hh(a)(1) (emphasis added).

The other two relevant provisions were added in the 1980s. The provision contained in the very next paragraph is the one directly at issue here. It says:

“No rule, requirement, or other statement of policy. . . that establishes or changes a substantive legal standard governing the scope of benefits, the payment for services, or the eligibility. . . to furnish or receive services or benefits. . . shall take effect unless it is promulgated by the Secretary by regulation under paragraph (1).” §1395hh(a)(2) (emphasis added).

And the third relevant provision, eight paragraphs away, contains the notice-and-comment requirement:

“[B]efore issuing in final form any regulation under