524
Thomas, J., dissenting
the 1985 memorandum specifically confirmed the continued vitality of the anti-redistribution principle. Ante, at 516, n. 4.3
Based on a reading of the undeniably precatory language
used in § 413.85(c), confirmed by two decades of consistent agency practice, I would hold that subsection (c) imposes no limit on the reimbursability of approved educational activities. Cf. M. Kraus & Bros., 327 U. S., at 622 ("Not even the Administrator's interpretations of his own regulations can . . . add certainty and definiteness to otherwise vague language"). Instead, the subsection seems intended merely to explain the remainder of the regulation, which addresses the reimbursability of approved educational costs in clear,
3 Even less satisfactory is the Secretary's suggestion that her failure to apply § 413.85(c) in prior fiscal years is of no relevance. See Brief for Respondent 37. The prior inconsistent conduct of the agency is quite relevant—not because her inconsistency "estop[s]" her from changing her view, ante, at 517 (internal quotation marks omitted)—but rather because agency conduct, no less than express statements, can effect a construction of statutes or regulations. Cf., e. g., Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 41-42 (1983) (holding that "[a] 'settled course of behavior embodies the agency's informed judgment that, by pursuing that course, it will carry out the policies [of applicable statutes or regulations]' ") (quoting Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, 412 U. S. 800, 807-808 (1973)). Two decades of providing reimbursement in contravention of what is now claimed to be the community support and anti-redistribution principles certainly constitutes a "settled course of behavior," and I find it difficult to believe the Secretary would permit such a persistent—and costly— error in the application of her reimbursement rules. Cf. 1991 Medicare Explained ¶ 706, p. 179 ("When Medicare pays for noncovered services or it pays too much for covered services, the program will ordinarily attempt to recover the amount of the overpayment"). A settled interpretation that persists over time is presumptively to be preferred, see Motor Vehicle Mfrs. Assn., 463 U. S., at 41-42, and therefore judges are properly suspect of sharp departures from past practice that are as unexplained as the Secretary's in this case. Id., at 42. See also Wichita Bd. of Trade, supra, at 807-808.
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