Stephen Gerald Breyer

“ This textual distinction between “regulations” and “interpretive rules” further suggests that the “regulations” that must go through notice and comment do not include interpretive rules.
There is, however, an important counterargument. As the Court emphasizes, ante, at 7−8, the provision before us includes the words “statement [s] of policy.” §1395hh (a) (2) . Even if we can easily read the words “rule [s] ” and “requirement [s] ” as referring to substantive or legislative rules, “statement [s] of policy” are a different matter. ”

“ Thus, the House bill required notice and comment for any “rule, requirement, or other statement of policy . . . that has (or may have) a significant effect on the scope of benefits, the payment for services, or the eligibility” for benefits or services. ”

“ Examining the potential consequences of each competing interpretation helps us perform that task, as we can presume that Congress did not intend to produce irrational or undesirable practical consequences. ”