Page:Azar v. Allina Health Services, 587 U.S. (2019) (slip opinion).pdf/32

12

maintenance costs. American Medical Int’l, Inc. v. Secretary of Health, Education and Welfare, 466 F. Supp. 605, 615−616 (DC 1979).

These examples all involve provisions of the Provider Reimbursement Manual, but the agency also publishes more than a dozen other manuals, with tens of thousands of additional pages of instructions governing “the scope of benefits, the payment for services, [and] the eligibility” for benefits or services. §1395hh(a)(2). These include the Medicare General Information, Eligibility and Entitlement Manual; the Medicare Claims Processing Manual; the Medicare Benefit Policy Manual; the Medicare Secondary Payer Manual; the Medicare Program Integrity Manual; the Medicare Prescription Drug Benefit Manual; and many others. Many provisions of these manuals have been deemed interpretive rules as well. See, e.g., Erringer v. Thompson, 371 F. 3d 625, 632 (CA9 2004) (provisions of Program Integrity Manual governing contractors’ creation of local coverage determinations); Linoz, 800 F. 2d, at 876– 878 (provision of Carrier’s Manual carving out an exception to the rule governing reimbursement for ambulance service).

Is it reasonable to believe that Congress intended to impose notice-and-comment requirements upon all, or most, or even many of these rules, requirements, or statements of policy? See ante, at 16. In my view, the answer is clearly no. Yet the Court’s opinion might impose this unnecessary and potentially severe burden on the administration of the Medicare scheme.

Finally, interpreting the statute as replicating the APA has the added virtues of clarity and stability. We know that Congress could not have meant to require notice-and-comment rulemaking for all agency actions that could