Page:Azar v. Allina Health Services, 587 U.S. (2019) (slip opinion).pdf/36

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AZAR v. ALLINA HEALTH SERVICES

BREYER, J., dissenting

where the adjective “substantive” modifies an entirely different noun.

We of course normally presume that the same word carries a single meaning throughout a given statute. Here, however, that presumption is overcome. The word “substantive” in §1395hh(e)(1) modifies the word “change,” and the phrase “substantive change” has a known meaning in the law. It refers to a change to the substance of a rule, rather than a technical change to its form. See, e.g., Northwest, Inc. v. Ginsberg, 572 U. S. 273, 282 (2014) (noting that statutory recodification “did not effect any ‘substantive change’ ” to the law); see also Black’s Law Dictionary 1469 (8th ed. 2004) (defining “substance” as, inter alia, “the essential quality of something, as opposed to its mere form” (emphasis added)). Thus, §1395hh(e)(1) simply says that the agency cannot retroactively apply nontechnical changes made to policies articulated in “regulations, manual instructions, interpretative rules, statements of policy, or guidelines of general applicability.” The provision before us deals with an entirely different subject, namely, the use of notice-and-comment procedures. And the word “substantive” in this context has a different and significantly narrower scope.

The Court also points to the fact that the Medicare Act cross-references the APA’s good-cause exception. Had Congress wanted to pick up the APA’s exclusion of interpretive rules, the Court says, it could simply have cross-referenced the APA’s interpretive-rule exception as well. Ante, at 9–10. As a practical matter, the legislative history suggests that the absence of a cross-reference is a particularly unreliable guide to congressional intent in this case. The initial version of the bill passed by the House of Representatives unambiguously sought to broaden the scope of the APA. See supra, at 7−8. Rather than starting anew, the Conference Committee retained some of the language from the House’s version but revised it to reflect