522
Thomas, J., dissenting
to Pet. for Cert. 50a.2 Similarly, reimbursing petitioner for GME costs violated the community support principle, to the extent funding for such costs had been available previously from non-Medicare sources. See ante, at 511 (where community support has been received, § 413.85(c) "prohibits Medicare reimbursement"). Thus, the Court's statement that there is no "evidence that the Secretary has interpreted the anti-redistribution provision in an inconsistent manner," ante, at 515, appears to be wishful thinking: Petitioner has been routinely granted reimbursement which it should have been denied under § 413.85(c), if the Secretary's current interpretation is correct.
I think it reasonable to conclude that in reimbursing petitioner since 1974 for GME costs not reimbursed from the inception of the Medicare program, the Secretary acted on the basis of an interpretation of § 413.85(c) that attached no significance to a Medicare provider's failure in prior years to be reimbursed for, or to carry on its books, eligible educational costs. This conclusion has significant support in the Secretary's roughly contemporaneous pronouncements. Cf. Lyng v. Payne, 476 U. S. 926, 939 (1986); M. Kraus & Bros., Inc. v. United States, 327 U. S. 614, 622 (1946) (opinion of Murphy, J.). In 1978, for example, the Secretary advised fiscal intermediaries that reasonable GME costs incurred by a related medical school are "allowable hospital costs," Intermediary Letter No. 78-7 (Feb. 1978), without even mentioning either the community support or the anti-redistribution principle as potential limitations on its construction. App. to Pet. for Cert. 64a. The letter's explicit statement that the Secretary therein addressed the "appropriateness" of "allocating [educational costs] to the hospital [in question],"
2 Because the Secretary, through the Health Care Financing Administration (HCFA), only modified rather than reversed the PRRB's decision, see App. to Pet. for Cert. 37a, the PRRB's opinion remains in force to the extent consistent with the opinion of the HCFA. Cf. 42 U. S. C. § 1395oo(f)(1).
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