(Slip Opinion) OCTOBER TERM, 2021 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BECERRA, SECRETARY OF HEALTH AND HUMAN SERVICES v. EMPIRE HEALTH FOUNDATION, FOR VALLEY HOSPITAL MEDICAL CENTER

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 20–1312. Argued November 29, 2021—Decided June 24, 2022 Once a person turns 65 or has received federal disability benefits for 24 months, he becomes “entitled” to benefits under Part A of Medicare. 42 U. S. C. §§426(a)–(b). Part A provides coverage for, among other things, inpatient hospital treatment. See §1395d(a). Medicare pays hospitals a fixed rate for such treatment based on the patient’s diag- nosis, regardless of the hospital’s actual cost and subject to certain ad- justments. §§1395ww(d)(1)–(5). One such adjustment is the “dispro- portionate share hospital” (DSH) adjustment, which provides higher- than-usual rates to hospitals that serve a higher-than-usual percent- age of low-income patients. To calculate the DSH adjustment, the De- partment of Health and Human Services (HHS) adds together two statutorily described fractions: the Medicare fraction—which repre- sents the proportion of a hospital’s Medicare patients who have low incomes—and the Medicaid fraction—which represents the proportion of a hospital’s total patients who are not entitled to Medicare and have low incomes. Together those fractions produce the “disproportionate- patient percentage,” which determines whether a hospital will receive a DSH adjustment, and how large it will be. Not all patients who qualify for Medicare Part A have their hospital treatment paid for by the program. Non-payment may occur, for ex- ample, if a patient’s stay exceeds Medicare’s 90-day cap per spell of illness, see §1395d, or if a patient is covered by a private insurance plan, see §1395y(b)(2)(A). Such limits on Medicare’s coverage prompt the question raised here: whether patients whom Medicare insures but does not pay for on a given day are patients “who (for such days) were 2 BECERRA v. EMPIRE HEALTH FOUNDATION, FOR VALLEY HOSPITAL MEDICAL CENTER Syllabus

entitled to [Medicare Part A] benefits” for purposes of computing a hos- pital’s disproportionate-patient percentage. §1395ww(d)(5)(F)(vi)(I). A 2004 HHS regulation says yes: If the patient meets the basic stat- utory criteria for Medicare (i.e., is over 65 or disabled), then the patient counts in the denominator and, if poor, in the numerator of the Medi- care fraction. See 69 Fed. Reg. 49098–49099. Respondent Empire Health Foundation challenged that regulation as inconsistent with the statute. The Ninth Circuit agreed. That court focused on the statute’s use of two different phrases: “entitled to [Medicare Part A] benefits” and “eligible for [Medicaid] assistance.” The Ninth Circuit read the latter phrase to mean that a patient qualifies for Medicaid and the former phrase to mean that a patient has an absolute right to payment from Medicare. The Court granted certiorari to resolve a conflict be- tween the Ninth Circuit and two other Circuit Courts, which had ap- proved of HHS’s regulation. Held: In calculating the Medicare fraction, individuals “entitled to [Med- icare Part A] benefits” are all those qualifying for the program, regard- less of whether they receive Medicare payments for part or all of a hos- pital stay. Pp. 7–19. HHS’s regulation is consistent with the text, context, and structure of the DSH provisions. The agency has interpreted the phrase “enti- tled to benefits” in those provisions to mean just what it means throughout the Medicare statute: qualifying for benefits. And count- ing everyone who qualifies for Medicare benefits in the Medicare frac- tion—and no one who qualifies for those benefits in the Medicaid frac- tion—accords with the statute’s attempt to capture, through two separate measurements, two different segments of a hospital’s low-in- come patient population. (a) Empire’s textual argument has a two-part structure. Echoing the Ninth Circuit, Empire primarily contends that the words “entitled” and “eligible” have different meanings. According to Empire, to be “el- igible” for a benefit is to be “qualified” to seek it; to be “entitled” to a benefit means instead to have an “absolute right” to its payment. But throughout the Medicare statute, “entitled to benefits” is essentially a term of art meaning “qualifying for benefits,” i.e., being over 65 or dis- abled. And in the end, Empire basically concedes that point. It must devise a way to give “entitled to benefits” a different meaning in the fraction descriptions than everywhere else in the Medicare statute. So Empire shifts gears, relying now on the parenthetical phrase “(for such days)” to transform the usual statutory meaning of “entitled to bene- fits” to something different and novel. But those three little words do not accomplish what Empire would like, having the much less radical function of excluding days of a patient’s hospital stay before he quali- fies for Medicare (e.g., turns 65). Pp. 8–15. Cite as: 597 U. S. ____ (2022) 3

Syllabus

(1) The Medicare statute explicitly states that “[e]very individual” who “has attained age 65” and is entitled to ordinary social security payments and “every individual” under age 65 who has been entitled to federal disability benefits for at least 24 months “shall be entitled to” Medicare Part A benefits. §§426(a)–(b). This broad meaning of “entitlement” coexists with limitations on payment. The entitlement to benefits, the statute repeatedly says, is an entitlement to payment under specified conditions. So a person remains entitled to benefits even if he has run into one of the statute’s conditions, such as the 90- day cap on inpatient hospital services. For example, the statute twice refers to patients who are “entitled to benefits under part A but ha[ve] exhausted benefits for inpatient hospital services.” §§1395l(a)(8)(B)(i), 1395l(t)(1)(B)(ii). In thus describing the Part A entitlement, the stat- ute reflects the complexity of health insurance: An insured who hits some limit on coverage for, say, eye care is still insured. His policy will pay for more eye care in the next coverage period and meanwhile will pay for his knee replacement. If “entitled to benefits” instead bore Empire’s meaning, Medicare beneficiaries would lose important rights and protections, such as the ability to enroll in other Medicare programs. See §§1395o(a), 1395w- 21(a)(3), 1395w–101(a)(3)(A). Empire’s interpretation would also make a hash of provisions designed to inform Medicare beneficiaries of their benefits, see §1395b–2(a), and to protect beneficiaries from misleading marketing materials, see §1395w–21(a)(3). Congress could not have intended to write a statute whose safeguards would apply or not apply, or fluctuate constantly, based on the happenstance of whether Medicare paid for hospital care on a given day. Pp. 9–13. (2) Empire concedes that its interpretation cannot be applied throughout the Medicare statute. To get around this, Empire claims that the parenthetical in “patients who (for such days) were entitled to [Part A] benefits,” §1395ww(d)(5)(F)(vi)(I), converts the usual statu- tory meaning of “entitled to benefits” to something different: actually receiving payment. That slight phrase, however, cannot bear so much interpretive weight. Instead, the parenthetical works as HHS says: hand in hand with the ordinary statutory meaning of “entitled to ben- efits.” It directs HHS to count only those individuals who qualify for Medicare on a particular day. So if a patient turns 65 on the 15th day of a 30-day hospital stay, HHS will count only 15 days. Pp. 13–15. (b) The structure of the relevant statutory provisions reinforces the conclusion that “entitled to benefits” means qualifying for benefits. The statute recompenses hospitals for serving two different low-in- come populations: low-income Medicare patients and low-income non- Medicare patients. HHS’s reading of “entitled” comports with this 4 BECERRA v. EMPIRE HEALTH FOUNDATION, FOR VALLEY HOSPITAL MEDICAL CENTER Syllabus

structure: a low-income Medicare patient always count in the Medi- care fraction. That is so regardless of whether the Medicare program is actually paying for a day of his care—because that fact has no rela- tionship to his financial status. Empire’s interpretation, by contrast, fits poorly with the statutory structure. Its who-paid-for-a-day-of-care test has no relationship to a patient’s financial status. So on Empire’s view, a patient could phase in and out of the Medicare fraction regard- less of income. Empire responds by asserting that any low-income per- son excluded from the Medicare fraction (say, because of exhaustion of benefits) would get counted instead in the Medicaid fraction. But even if that is true, Empire’s scheme would result in patients ping-ponging back and forth between the two fractions based on the happenstance of actual Medicare payments. In any event, Empire is too quick to claim that those who (on its view) are tossed from the Medicare frac- tion for non-income-based reasons like exhaustion of benefits would still wind up in the Medicaid fraction. Applying Empire’s reading of “for such days,” a low-income patient who has exhausted his coverage would not get counted at all, in either fraction, but he would remain just as low-income and impose just as high costs on the hospital treat- ing him. Empire’s only response is to insist that its interpretation must be right because it usually (though not always) leads to higher DSH payments. But the point of the statute is not to pay hospitals the most money possible; it is to compensate them for serving a dispropor- tionate share of low-income patients. Pp. 15–18. 958 F. 3d 873, reversed and remanded.

KAGAN, J., delivered the opinion of the Court, in which THOMAS, BREYER, SOTOMAYOR, and BARRETT, JJ., joined. KAVANAUGH, J., filed a dissenting opinion, in which ROBERTS, C. J., and ALITO and GORSUCH, JJ., joined. Cite as: 597 U. S. ____ (2022) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES _________________

No. 20–1312 _________________

XAVIER BECERRA, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER v. EMPIRE HEALTH FOUNDATION, FOR VALLEY HOSPITAL MEDICAL CENTER ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 24, 2022]

JUSTICE KAGAN delivered the opinion of the Court. The Medicare program reimburses hospitals at higher- than-usual rates when they serve a higher-than-usual per- centage of low-income patients. The enhanced rates are cal- culated by adding together two fractions, called the Medi- care fraction and the Medicaid fraction. Roughly speaking, the former measures the hospital’s low-income senior-citi- zen population, and the latter the hospital’s low-income non-senior population. This case raises a technical but important question about the Medicare fraction. The statutory description of that fraction refers to “the number of [a] hospital’s patient days” attributable to low-income patients “who (for such days) were entitled to benefits under part A of [Medicare].” 42 U. S. C. §1395ww(d)(5)(F)(vi)(I). According to the Depart- ment of Health and Human Services (HHS), a person is “en- titled to [Part A] benefits” under the statute if he qualifies for the Medicare program—essentially, if he is over 65 or 2 BECERRA v. EMPIRE HEALTH FOUNDATION, FOR VALLEY HOSPITAL MEDICAL CENTER Opinion of the Court

disabled. That remains so even when Medicare is not pay- ing for part or all of his hospital stay—for example, because a private insurer is legally responsible or because he has used up his allotted coverage. Today, we approve HHS’s understanding of the Medicare fraction. I The Medicare program provides Government-funded health insurance to over 64 million elderly or disabled Americans. (The vast majority of that number are senior citizens.) When a person turns 65 or has received federal disability benefits for 24 months, he automatically (i.e., without application or other filing) becomes “entitled” to benefits under Medicare Part A. §§426(a)–(b). The most significant Part A benefit is coverage for inpatient hospital treatment; Part A also covers associated physician and skilled nursing services. See §1395d(a); HHS, CMS Ruling No. CMS–1498–R, p. 10 (Apr. 28, 2010), https:// www.cms.gov/regulations-and-guidance/guidance/rulings /downloads/cms1498r.pdf (CMS–1498–R). In addition, en- titlement to Part A generally enables a patient to enroll (if he wishes) in Medicare’s other programs: Part B’s coverage for outpatient care; Part C’s coverage through privately ad- ministered Medicare Advantage plans; and Part D’s cover- age for prescription drugs. See §§1395o(a)(1), 1395w– 21(a)(3), 1395w–101(a)(3)(A). The Medicare program pays a hospital a fixed rate for treating each Medicare patient, based on the patient’s diag- nosis and regardless of the hospital’s actual costs. §§1395ww(d)(1)–(4). The rates are designed to reflect the amounts an efficiently run hospital, in the same region, would expend to treat a patient with the same diagnosis. See 42 CFR §412.2 (2022). If the hospital spends anything more, it suffers a financial loss. The flat-rate payment sys- tem thus gives hospitals an incentive to provide efficient levels of medical service. Cite as: 597 U. S. ____ (2022) 3

Opinion of the Court

But Congress, recognizing complexity in healthcare, pro- vided for various hospital-specific rate adjustments—in- cluding the one at issue here for treating low-income pa- tients. The “disproportionate share hospital” (DSH) adjustment gives hospitals serving an “unusually high per- centage of low-income patients” enhanced Medicare pay- ments. Sebelius v. Auburn Regional Medical Center, 568 U. S. 145, 150 (2013). The mark-up reflects that low-in- come individuals are often more expensive to treat than higher income ones, even for the same medical conditions. In compensating for that disparity, the DSH adjustment en- courages hospitals to treat low-income patients. To calculate a hospital’s DSH adjustment, HHS adds to- gether two statutorily described fractions, usually called the Medicare fraction and the Medicaid fraction. Those fractions are designed to capture two different low-income populations that a hospital serves. The Medicare fraction represents the proportion of a hospital’s Medicare patients who have low incomes, as identified by their entitlement to supplementary security income (SSI) benefits. SSI is a “welfare program” providing benefits to “financially needy individuals” who (like Medicare patients generally) are over 65 or disabled. Bowen v. Galbreath, 485 U. S. 74, 75 (1988); see §§1382(a)(1), 1382c(a)(1). The Medicaid fraction repre- sents the proportion of a hospital’s patients who are not en- titled to Medicare and have low incomes, as identified by their eligibility for Medicaid. The Medicaid program pro- vides health insurance to all low-income individuals, re- gardless of age or disability. See §1396d(a). So at a high level of generality, the Medicare fraction is a measure of a hospital’s senior (or disabled) low-income population, while the Medicaid fraction is a measure of a hospital’s non-senior (except for disabled) low-income population. With that under your belt, you might be ready to absorb the relevant statutory language (but don’t bet on it). The Medicare fraction is described as: 4 BECERRA v. EMPIRE HEALTH FOUNDATION, FOR VALLEY HOSPITAL MEDICAL CENTER Opinion of the Court

“[a] fraction (expressed as a percentage), the numera- tor of which is the number of [a] hospital’s patient days for [the fiscal year] which were made up of patients who (for such days) were entitled to benefits under part A of [Medicare] and were entitled to [SSI] benefits[ ], and the denominator of which is the number of such hospi- tal’s patient days for such fiscal year which were made up of patients who (for such days) were entitled to ben- efits under [Medicare] part A.” §1395ww(d)(5)(F) (vi)(I). That is a mouthful (and without the brackets, it’s even worse). So again, in general terms: The numerator is the number of patient days attributable to Medicare patients who are poor. The denominator is the number of patient days attributable to all Medicare patients. Divide the for- mer by the latter to get the fraction “expressed as a percent- age.” Ibid. And similarly for the Medicaid fraction. That fraction is described as: “[a] fraction (expressed as a percentage), the numera- tor of which is the number of [a] hospital’s patient days for [the fiscal year] which consist of patients who (for such days) were eligible for medical assistance under [Medicaid], but who were not entitled to benefits under part A of [Medicare], and the denominator of which is the total number of the hospital’s patient days for such [fiscal year].” §1395ww(d)(5)(F)(vi)(II). That too is a lot to digest. So again, in general terms: The numerator is the number of patient days attributable to non-Medicare patients who are poor. The denominator is the total number of patient days. Divide the former by the latter to get the second percentage the DSH calculation re- quires.1 —————— 1 You may have noticed that the denominator of the Medicare fraction Cite as: 597 U. S. ____ (2022) 5

Opinion of the Court

Once both percentages have been calculated, they are added together to produce the “disproportionate-patient percentage.” That percentage determines whether a hospi- tal will receive a DSH adjustment, and if so, how large it will be. The combined percentage must usually equal or exceed 15% for a hospital to get an adjustment. See §1395ww(d)(5)(F)(v). So, for example, if a hospital’s Medi- care fraction is 10% and its Medicaid fraction is 5%, then the hospital would qualify for increased rates. The higher the disproportionate-patient percentage goes, the greater the rate mark-up that the hospital will receive. §§1395ww(d)(5)(F)(vii)–(xiv). This case is about how to count patients who qualify for Medicare Part A—because they are over 65 or disabled—at times when the program is not paying for their hospital treatment. Such non-payment may occur for a number of reasons. For one, Medicare usually pays for only the first 90 days of a hospital stay associated with a single “spell of illness.” See §1395d; 42 CFR §409.61(a). If a patient’s stay for an illness exceeds that limit, his coverage is “ex- hausted.” §409.61(a). For another, Medicare pays for hos- pital treatment only once a patient has used up other med- ical insurance. See §1395y(b)(2)(A). So if a patient has a private insurance plan, or is injured by a tortfeasor with insurance, Medicare will not pay unless and until that other —————— (the number of patient days attributable to Medicare patients) is smaller than the denominator of the Medicaid fraction (the total number of pa- tient days). That means each low-income patient day included in the Medicare fraction will count for more than each low-income patient day included in the Medicaid fraction. So, to use an overly simplified exam- ple, a hospital with 100 of the former will get a larger rate adjustment than a hospital with 100 of the latter. Although Congress did not explain that difference, it presumably reflects the Medicare-centric perspective of what is, after all, a Medicare payment scheme. (The Medicaid statute separately requires States to make DSH payments, using a different for- mula that focuses on a hospital’s Medicaid population. See 42 U. S. C. §1396r–4. But that statutory provision is not at issue here.) 6 BECERRA v. EMPIRE HEALTH FOUNDATION, FOR VALLEY HOSPITAL MEDICAL CENTER Opinion of the Court

policy runs dry. Limits like those prompt the question pre- sented here: Are patients whom Medicare insures but does not pay for on a given day “entitled to [Medicare Part A] benefits,” for purposes of computing a hospital’s dispropor- tionate-patient percentage? §§1395ww(d)(5)(F)(vi)(I–II). An HHS regulation, issued in 2004, says those patients remain so entitled. See 69 Fed. Reg. 48916. Under the reg- ulation, whether Medicare is actually paying for a patient’s hospital treatment is irrelevant. So, for example, it does not matter that a patient has exhausted his 90 days of cov- erage for an illness, or that a private insurer is paying for his hospital stay. As long as the patient meets the basic statutory criteria for Medicare (i.e., he is over 65 or disa- bled), then the patient counts in the denominator and, if he is poor, in the numerator of the Medicare fraction (as “enti- tled to [Medicare Part A] benefits”). See id., at 49098– 49099. And by the same token, he does not count in the numerator of the Medicaid fraction (which includes only those “not entitled to [Medicare Part A] benefits”). See ibid. As HHS explained in 2004, the effect of the regulation var- ies depending on the makeup of a hospital’s patient popula- tion. See ibid. But for most hospitals, the regulation has worked to decrease DSH payments, because as beneficiar- ies are added to the Medicare fraction’s denominator (even though poor beneficiaries are also added to its numerator), a hospital’s Medicare fraction generally (though not always) goes down. See Letter from E. Prelogar, Solicitor General, to S. Harris, Clerk of Court (Nov. 23, 2021). Respondent Empire Health Foundation challenged the regulation as inconsistent with the statutory fraction de- scriptions, and the Court of Appeals for the Ninth Circuit agreed. See Empire Health Foundation v. Azar, 958 F. 3d 873 (2020). The court focused on the statute’s use of two different phrases: “entitled to [Medicare Part A] benefits” and (in the Medicaid fraction alone) “eligible for [Medicaid] assistance.” Id., at 885. Relying on Circuit precedent, the Cite as: 597 U. S. ____ (2022) 7

Opinion of the Court

court read the latter, “eligible” phrase to “mean that a pa- tient simply meets the Medicaid statutory criteria”—re- gardless of whether “Medicaid actually paid” for a given ser- vice on a given day. Ibid. That approach, of course, is analogous to the one the HHS regulation adopts for Medi- care beneficiaries. But the Ninth Circuit reasoned that the statutory language relating to Medicare is different: It asks whether a person is “entitled to” (not “eligible for”) benefits. And the word “entitled,” the court held (relying on the same precedent), “mean[s] that a patient has an ‘absolute right . . . to payment.’ ” Ibid. (ellipsis in original). So even if a patient is over 65, he is not “entitled to [Medicare Part A] benefits” within the meaning of the statute for any hospital stay, or part thereof, Medicare is not paying for. As the Ninth Circuit recognized, two other Courts of Ap- peals had deferred to HHS’s contrary view of the statute and upheld the regulation. See Metropolitan Hospital v. Department of Health and Human Servs., 712 F. 3d 248 (CA6 2013); Catholic Health Initiatives Iowa Corp. v. Sebe- lius, 718 F. 3d 914 (CADC 2013). We granted certiorari to resolve the conflict. See 594 U. S. ___ (2021).2 II HHS’s regulation correctly construes the statutory lan- guage at issue. The ordinary meaning of the fraction de- scriptions, as is obvious to any ordinary reader, does not ex- actly leap off the page. See Catholic Health Initiatives, 718 F. 3d, at 916 (The “language is downright byzantine”). The provisions are technical: They call to mind Justice Frank- furter’s injunction that when a statute is “addressed to spe- cialists, [it] must be read by judges with the minds of the specialists.” Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 536 (1947). But when read in that —————— 2 This case does not raise the question whether HHS has properly in-

terpreted the phrase “entitled to [SSI] benefits” in the Medicare fraction. Accordingly, we express no view on that issue. 8 BECERRA v. EMPIRE HEALTH FOUNDATION, FOR VALLEY HOSPITAL MEDICAL CENTER Opinion of the Court

suitable way, the fraction descriptions disclose a surpris- ingly clear meaning—the one chosen by HHS. The text and context support the agency’s reading: HHS has interpreted the words in those provisions to mean just what they mean throughout the Medicare statute. And so too the structure of the DSH provisions supports HHS: Counting everyone who qualifies for Medicare benefits in the Medicare frac- tion—and no one who qualifies for those benefits in the Medicaid fraction—accords with the statute’s attempt to capture, through two separate measurements, two different segments of a hospital’s low-income patient population. A Speaking of twos, Empire’s textual argument also has a bifurcated structure—but neither part can produce its de- sired result. Empire primarily contends, echoing the Ninth Circuit, that “different words [mean] different things” when used in a single statute—and so “entitled” means some- thing different from “eligible.” Brief for Respondent 22. To be “eligible” for a benefit, Empire says, is to be “qualified” to seek it; to be “entitled” to a benefit means instead to have an “absolute right” to its payment. Id., at 4, 30. But that reading, even if plausible in the abstract, does not work in the Medicare statute. There, “entitled to benefits” is essen- tially a term of art, used over and over to mean qualifying (or, yes, being eligible) for benefits—i.e., being over 65 or disabled. And in the end, Empire basically concedes that point. It must devise a way to give “entitled to benefits” a different meaning in the fraction descriptions than the phrase has everywhere else in the Medicare law. See Tr. of Oral Arg. 37–41. So Empire shifts gears, relying now on the parenthetical phrase “(for such days)” to do its work— to transform the usual statutory meaning of “entitled to benefits” to something different and novel. See ibid.; §1395ww(d)(5)(F)(vi)(I) (“patients who (for such days) were entitled to [Medicare Part A] benefits”). (The dissent, for Cite as: 597 U. S. ____ (2022) 9

Opinion of the Court

its part, focuses most of its energies on this latter stage of Empire’s argument.) But those three little words do not ac- complish what Empire would like, having the much less radical function of excluding days of a patient’s hospital stay before he qualifies for Medicare (e.g., turns 65). So con- trary to Empire’s claim, being “entitled” to Medicare bene- fits still means—in the fraction descriptions, as throughout the statute—meeting the basic statutory criteria, not actu- ally receiving payment for a given day’s treatment. 1 First and foremost, the Medicare statute explicitly iden- tifies which individuals are “entitled to hospital insurance benefits under part A”—all people who meet the basic stat- utory criteria. §§426(a)–(b). “Every individual,” the law states, who “has attained age 65” and is entitled to ordinary social security payments “shall be entitled to” Medicare Part A benefits. §426(a). So too, “every individual” under age 65 who has been entitled to federal disability benefits for at least 24 months “shall be entitled” to Medicare Part A benefits. §426(b). The “[e]ntitlement to hospital insur- ance benefits” (as the section caption reads) is “automatic”: Age or disability makes a person “entitled” to Part A bene- fits without an application or anything more. §426; Hall v. Sebelius, 667 F. 3d 1293, 1294–1296 (CADC 2012). Turn 65 or receive disability benefits for 24 months, and you have an entitlement to Part A benefits—because the latter is, ac- cording to the statute, simply a legal status arising from the former.3 —————— 3 Another way of putting the point is to say that the Medicare statute

uses the term “entitled” to benefits in the same way as the Medicaid stat- ute uses the term “eligible” for benefits. Compare 42 U. S. C. §426 (“en- titled” in Medicare context) with, e.g., §§1396, 1396d (“eligible” in Medi- caid context). That difference in overall statutory terminology is mirrored in the fraction provisions—“entitled to [Medicare Part A] bene- fits” and “eligible for [Medicaid] assistance.” §§1395ww(d)(5)(F)(vi)(I–II). As the D. C. Circuit put the point: “Congress has, throughout the various 10 BECERRA v. EMPIRE HEALTH FOUNDATION, FOR VALLEY HOSPITAL MEDICAL CENTER Opinion of the Court

That broad meaning of “entitlement” coexists with limi- tations on payment, as several statutory provisions show. The entitlement to benefits, the statute repeatedly says, is an entitlement to payment under specified conditions. To quote one provision: “entitlement of an individual” to Med- icare Part A benefits “consist[s] of entitlement to have pay- ment made under, and subject to the limitations in, part A.” §426(c)(1); see §1395d(a) (similarly stating that the entitle- ment to benefits entails the receipt of “payment[s] . . . sub- ject to the provisions of this part”). Those limits on payment include, as described earlier, the 90-day hospital-stay cap. See supra, at 5–6. And indeed the statute twice refers to patients who are “entitled to benefits under part A but ha[ve] exhausted benefits for inpatient hospital services.” §§1395l(a)(8)(B)(i), 1395l(t)(1)(B)(ii). Under Empire’s read- ing, that statement makes no sense: A patient is not, Em- pire argues, “entitled to benefits” when the statute pre- cludes payment. See supra, at 8. But the statute says otherwise. It considers those who have exhausted their cov- erage (and so cannot receive further payments for a hospital stay) still “entitled to [Part A] benefits.” In thus describing the Part A entitlement, the Medicare statute reflects the complexity of health insurance. Con- sider your own health plan (maybe it is Medicare). You might have hit some limit on coverage as to one medical service—let’s say, eye care. But you’re still insured: Your policy will pay for more eye care in the next coverage period and meanwhile will pay for your knee replacement. So it is with Medicare Part A. As the 2004 regulation explains, pa- tients “who have exhausted their Medicare Part A inpatient coverage may still be entitled to other Part A benefits.” 69 —————— Medicare and Medicaid statutory provisions, consistently used the words ‘eligible’ to refer to potential Medicaid beneficiaries and ‘entitled’ to refer to potential Medicare beneficiaries.” Northeast Hospital Corp. v. Sebe- lius, 657 F. 3d 1, 12 (2011). Congress simply followed suit when referring to the two programs in the fraction provisions. Cite as: 597 U. S. ____ (2022) 11

Opinion of the Court

Fed. Reg. 49098. Medicare Part A also covers, “for example, certain physician services and skilled nursing services” out- side the hospital setting. See CMS–1498–R, at 10. And even as to hospital care, another 90 days of coverage will be available for another illness. See supra, at 5. For that rea- son among others, HHS has noted, the stoppage of payment for any given service cannot be thought to affect the broader statutory entitlement to Part A benefits. See 69 Fed. Reg. 49098. That entitlement arises when a person meets the basic statutory qualifications and (unless a disability di- minishes) never goes away. If “entitled to [Part A] benefits” instead bore Empire’s meaning, Medicare beneficiaries would lose important rights and protections. Perhaps most significantly, a pa- tient could lose his ability to enroll in other Medicare pro- grams whenever he lacked a right to Part A payments for hospital care. As noted earlier, a person’s entitlement to Part A benefits is usually the predicate for his enrollment in Part B (covering outpatient care), Part C (providing cov- erage through privately managed plans), or Part D (offering prescription-drug benefits). See §§1395o(a), 1395w– 21(a)(3), 1395w–101(a)(3)(A); supra, at 2. So if (as Empire urges) a hospitalized patient is not “entitled to [Part A] ben- efits” on any day he cannot get Part A payments, then he could be locked out of the benefits of Parts B through D at that time. Consider what that might mean in the real world: A Medicare patient in the hospital for longer than 90 days—by definition, a very ill person—could not enroll in Part D’s prescription-drug coverage. Congress could not have wanted—and in fact did not provide for—that result. Empire’s interpretation would also make a hash of provi- sions designed to inform Medicare beneficiaries of their benefits. The statute requires annual notice to individuals “entitled to benefits under part A” concerning all available program benefits, including any “limitations on payment.” 12 BECERRA v. EMPIRE HEALTH FOUNDATION, FOR VALLEY HOSPITAL MEDICAL CENTER Opinion of the Court

§1395b–2(a). Under Empire’s reading, that notice require- ment would phase in and out depending on whether Medi- care Part A was currently paying for the individual’s hospi- tal treatment. HHS, for example, would have no obligation to inform a patient of benefits when a private insurer was paying for his hospital care, even if that policy would soon run out and Medicare would assume the coverage. Once again, Congress would not have drafted such an on-again, off-again notice requirement. So too, Empire’s reading of “entitled to [Part A] benefits” would subvert a provision to protect beneficiaries from mis- leading marketing materials. Under the statute, an insurer offering a Part C (privately managed Medicare) plan may not distribute advertising materials to eligible beneficiaries unless the materials are first cleared by HHS. See §1395w– 21(h)(1). Eligible beneficiaries are individuals “entitled to benefits under Part A” and enrolled in Part B. §1395w– 21(a)(3). If Empire is right about what the “entitled to” phrase means, an insurer could send whatever it wanted to a patient who at that time lacked a right to Part A pay- ments. But such a person might well be interested in even- tually enrolling in a Part C plan—and he is no less vulner- able to deceptive marketing than anyone else. And the problems with Empire’s interpretation do not stop there. The Sixth and D. C. Circuits have cataloged sev- eral other statutory provisions that Empire’s reading would render unworkable or unthinkable or both. See Metropoli- tan Hospital, 712 F. 3d, at 260; Northeast Hospital Corp. v. Sebelius, 657 F. 3d 1, 6–11 (CADC 2011). We could spell out each one in painful detail, but we think the above should suffice. Applying Empire’s reading of “entitled to [Part A] benefits” across the Medicare statute would dimin- ish the beneficiary protections Congress wrote into law. Those safeguards would apply or not apply, or fluctuate constantly between the two, based on the happenstance of whether Medicare paid for hospital care on a given day. Cite as: 597 U. S. ____ (2022) 13

Opinion of the Court

Once again, that is not the statute Congress wrote. 2 Faced with these many provisions, Empire swerves. Em- pire effectively (if reluctantly) concedes that its reading of “entitled to [Part A] benefits”—again, to have an “absolute right” to Part A payments—cannot be applied throughout the Medicare statute. Brief for Respondent 30; see id., at 41–42; Tr. of Oral Arg. 37–39. There, over and over—and contra the main thrust of Empire’s arguments—the con- cepts of entitlement and eligibility are the same. So Empire must come up with a way of converting the ordinary mean- ing of “entitled” in the Medicare law to something different in its fraction provisions. The lever Empire proposes to use for that purpose is the parenthetical phrase “(for such days).” See Tr. of Oral Arg. 38–39 (“[T]he key distinction” is “for such days,” which is “language that’s not found any- where else”). Empire argues that when “entitled” is mar- ried to “(for such days)”—recall the whole phrase, “patients who (for such days) were entitled to [Part A] benefits”—the idea of entitlement morphs. §1395ww(d)(5)(F)(vi)(I). Now it does not mean meeting Medicare’s statutory (age or disa- bility) criteria on the days in question, but instead means actually receiving Medicare payments. (The dissent makes much the same argument.) But we cannot understand Congress to have changed the statute’s consistent meaning of “entitled to benefits” simply by adding “(for such days).” That slight phrase is incapable of bearing so much interpretive weight. If Congress “does not alter the fundamental[s]” of a statutory scheme “in vague terms or ancillary provisions,” then it ordinarily does not do so in parentheticals either. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). To the con- trary, a parenthetical is “typically used to convey an aside or afterthought.” Boechler v. Commissioner, 596 U. S. ___, 14 BECERRA v. EMPIRE HEALTH FOUNDATION, FOR VALLEY HOSPITAL MEDICAL CENTER Opinion of the Court

___ (2022) (slip op., at 5) (internal quotation marks omit- ted). And nothing about the “(for such days)” parenthetical signals anything different. Empire asks us to read it as transforming the uniform statutory meaning of “entitled to benefits” for the fraction provisions alone. But if Congress had wanted to accomplish that unexpected object, it would simply have said so. Or else, to make only paid-for days count, it would have dropped the language of entitlement altogether. What it would not have done is upend the set- tled meaning of that language, in this one place, through so subtle, indirect, and opaque a mechanism. The “(for such days)” phrase instead works as HHS says: hand in hand with the ordinary statutory meaning of “enti- tled to [Part A] benefits.” The parenthetical no doubt tells HHS to ask about a patient on a given day. But the query the agency must make is not whether that patient on that day has received Part A payments; the query is, consistent with what “entitled” means all over the statute, whether that patient on that day is qualified to do so. Suppose, for example, that a patient turns 65 halfway through a 30-day hospital stay. HHS will then count only 15 days of his stay when computing the Medicare fraction. Or suppose, simi- larly, that midway through his stay, a patient begins to qualify as disabled—because, under the statutory defini- tion, he has reached his 25th month of federal disability benefits. Then, too, only the second half of the patient’s stay would go into the fraction—because only then has he met the criteria for benefits. Empire complains that the phrase “(for such days),” viewed in that way, does too “little work.” Brief for Re- spondent 38; Tr. of Oral Arg. 40–41. But it does more than enough. Some 10,000 people turn 65 in this country every day, thus qualifying for Medicare coverage. See American Assn. of Retired Persons, The Aging Readiness & Competi- tiveness Report: United States 2, https://arc.aarpinterna tional.org/File%20Library/Full%20Reports/ARC-Report--- Cite as: 597 U. S. ____ (2022) 15

Opinion of the Court

United-States.pdf. Many other individuals daily attain their 25th month on federal disability benefits. It is natural for Congress to have thought of those facts when devising the fractions. By the way, said Congress (in what truly is an “aside or afterthought”): If someone turns 65 during the year the fraction covers, make sure to exclude his pre-birth- day hospital days. Boechler, 596 U. S., at ___ (slip op., at 5) (internal quotation marks omitted). Only count the days after he qualifies for Medicare Part A—when, under the statute’s constant meaning, he is “entitled to [Part A] ben- efits.”4 B The structure of the relevant statutory provisions rein- forces our conclusion that “entitled to [Part A] benefits” means qualifying for those benefits, and nothing more. As earlier explained, the statute is designed to recompense hospitals for serving low-income patients, who are compar- atively more expensive to treat. See supra, at 3. The stat- ute determines the appropriate payment (if any) by meas- uring, through two separate fractions, two separate —————— 4 The dissent has another complaint: that from 1986 until 2003 HHS

read the “for such days” phrase in the Medicare fraction just as Empire does, and that the Department changed its view merely to reduce pay- ments to hospitals. See post, at 1–2 (opinion of KAVANAUGH, J.). But that is an incomplete—leading to an inaccurate—picture. From 1986 to 1997, HHS read both the Medicare and the Medicaid fractions as counting only days actually paid for. The effect on the Medicaid side was to substan- tially depress payments to hospitals (because many low-income patients were excluded from the numerator, while the denominator remained the same, see supra, at 4, and n. 1). Hospitals sued, and four Circuit Courts found that HHS’s understanding of the “for such days” language in the Medicaid fraction was wrong. See Brief for United States 12–13 (collect- ing citations). In response, HHS immediately corrected its approach to the Medicaid fraction—which significantly raised payments to hospitals. Some five years later, HHS issued a rule to bring its reading of the same language in the Medicare fraction into line. The history shows, then, that HHS “changed course” not “to save money” but to comply with the law. Post, at 2. 16 BECERRA v. EMPIRE HEALTH FOUNDATION, FOR VALLEY HOSPITAL MEDICAL CENTER Opinion of the Court

populations: the low-income Medicare population and the low-income non-Medicare population. See supra, at 3.5 (Be- cause the vast majority of Medicare patients are over 65, that roughly translates into the low-income senior popula- tion and the low-income non-senior population.) Those pop- ulations, taken together, account for all the low-income pa- tients a hospital treats. HHS’s reading of “entitled” comports with the statute’s two-population structure. A low-income Medicare patient always counts in the Medicare fraction. That is so regard- less of whether the Medicare program is actually paying for a day of his care—because that fact has no relationship to his financial status. The Medicare fraction, as calculated by HHS, thus captures the entire low-income Medicare (i.e., senior) population. And correlatively, the Medicaid fraction captures the entire low-income non-Medicare (i.e., non-sen- ior) population. The binary dividing line HHS uses—do you qualify for Medicare?—mirrors the statute’s binary, popu- lation-focused framework. All low-income people fit natu- rally into one or the other box, with the sum of the two leav- ing no one out. By contrast, Empire’s view fits poorly with the bifurcated, population-based statutory structure. Again, its who-paid- for-a-day-of-care test has no relationship to a patient’s fi- nancial status. So on Empire’s view, a patient could phase in and out of the Medicare fraction even though his income remains the same. Empire responds by asserting that any low-income person excluded from the Medicare fraction (say, because of exhaustion of benefits) would get counted instead in the Medicaid fraction. See Brief for Respondent 15–16, 50–51. But even if that is true—we express our —————— 5 As noted earlier, see supra, at 4, n. 1, the two populations (because of

their fractions’ different denominators) are differently weighted in calcu- lating DSH payments. All else equal, a hospital receives greater com- pensation for low-income individuals in the Medicare population than for low-income individuals in the non-Medicare population. Cite as: 597 U. S. ____ (2022) 17

Opinion of the Court

doubts below—Empire’s scheme would result in patients ping-ponging back and forth between the two fractions based on the happenstance of actual Medicare payments, sometimes during a single hospital stay. That scheme is of course harder to administer than HHS’s. And still more, it does not reflect the statute’s dichotomy between two dis- crete low-income populations, each of which counts (but counts differently) toward setting a hospital’s DSH rate. See supra, at 4, n. 1, 16, n. 5. In any event, Empire is too quick to claim that those who (on its view) are tossed from the Medicare fraction for non- income-based reasons would still wind up in the Medicaid fraction. Recall here the role Empire says the phrase “(for such days)” plays. See supra, at 13–15. According to Em- pire’s ultimate argument, that phrase is what converts the ordinary statutory meaning of “entitled to benefits” (i.e., qualifying for Medicare) to a special meaning (i.e., actually receiving payments). So where the phrase “(for such days)” does not appear, the usual meaning of “entitled” should gov- ern. Now look again at the description of the Medicaid frac- tion. It counts “patients [i] who (for such days) were eligible for [Medicaid], but [ii] who were not entitled to benefits un- der part A [of Medicare].” §1395ww(d)(5)(F)(vi)(II). In that description, “for such days” does not modify clause [ii]. So the “not entitled” phrase in that clause should mean (con- sistent with the rest of the statute) not qualifying for Med- icare. But those whom Empire’s view would oust from the Medicare fraction—say, because of exhaustion—do qualify for Medicare. They thus fall outside clause [ii]—and out- side the Medicaid fraction. The upshot is that, under Em- pire’s reading, a low-income patient who, say, has ex- hausted his coverage will not get counted at all. But that person remains just as low income as he ever was, imposing just as high costs on the hospital treating him. His exclu- sion demonstrates, if anything more needs to, the error of Empire’s reading. 18 BECERRA v. EMPIRE HEALTH FOUNDATION, FOR VALLEY HOSPITAL MEDICAL CENTER Opinion of the Court

Empire’s only response is to insist that its interpretation has to be right because it usually (though not always) leads to higher DSH payments for hospitals. See Brief for Re- spondent 33–35; supra, at 6. But the point of the DSH pro- visions is not to pay hospitals the most money possible; it is instead to compensate hospitals for serving a disproportion- ate share of low-income patients. And Empire’s reading ex- cels only by the former measure, not by the latter one. As just shown, Empire’s actual-payment test counts fewer, not more, of the low-income patients the DSH provisions care about. The reason that approach still benefits many hospi- tals is that it deflates the denominator of the Medicare frac- tion. Consider a wealthy 70-year-old patient who has ex- hausted Medicare benefits—or, as is often true, has a private insurance policy. HHS’s view would exclude him from the Medicare fraction’s numerator (because he is wealthy) but keep him in the denominator (because he is over 65). By contrast, Empire’s view would exclude him from both the numerator and the denominator—the latter because he is not actually receiving Medicare payments. That move increases payments to hospitals—but only be- cause it fails to capture high-income Medicare patients, not because it better captures low-income ones. Or said other- wise, it increases payments because it distorts what the Medicare fraction is designed to measure—the share of low- income Medicare patients relative to the total. III Text, context, and structure all support calculating the Medicare fraction HHS’s way. In that fraction, individuals “entitled to [Medicare Part A] benefits” are all those quali- fying for the program, regardless of whether they are re- ceiving Medicare payments for part or all of a hospital stay. That reading gives the “entitled” phrase the same meaning it has throughout the Medicare statute. And it best imple- ments the statute’s bifurcated framework by capturing low- Cite as: 597 U. S. ____ (2022) 19

Opinion of the Court

income individuals in each of two distinct populations a hospital serves. For those reasons, we reverse the judgment of the Court of Appeals and remand the case for further proceedings con- sistent with this opinion. It is so ordered. Cite as: 597 U. S. ____ (2022) 1

KAVANAUGH, J., dissenting

SUPREME COURT OF THE UNITED STATES _________________

No. 20–1312 _________________

XAVIER BECERRA, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER v. EMPIRE HEALTH FOUNDATION, FOR VALLEY HOSPITAL MEDICAL CENTER ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 24, 2022]

JUSTICE KAVANAUGH, with whom THE CHIEF JUSTICE, JUSTICE ALITO, and JUSTICE GORSUCH join, dissenting. Under the Medicare statute, HHS pays higher reim- bursements to hospitals that serve a significant number of low-income patients. The statutory formula for determin- ing exactly how much HHS will pay to those hospitals is mind-numbingly complex. But embedded within the com- plicated overall formula are various subsidiary calcula- tions, some of which are relatively straightforward. This case concerns one of those straightforward subsidi- ary calculations. Consistent with traditional insurance and coordination-of-benefits principles, Medicare by statute cannot pay for a patient’s hospital care if, for example, the patient is covered by private insurance, the patient has ex- hausted her Medicare benefits, or a third-party tortfeasor is liable for the patient’s care. The retrospective reimburse- ment question raised by the statutory provision in this case is this: Was a patient “entitled to” have payment made by Medicare for a particular day in the hospital if the patient by statute could not (and did not) have payment made by Medicare for that day? In my view, the answer to that nar- row question is straightforward and commonsensical: No. Importantly, from the time the statute was enacted in 2 BECERRA v. EMPIRE HEALTH FOUNDATION, FOR VALLEY HOSPITAL MEDICAL CENTER KAVANAUGH, J., dissenting

1986 until 2003, HHS interpreted this statutory provision in the exact same way that I do. See 51 Fed. Reg. 31460−31461 (1986); Brief for Petitioner 32−33. Then in 2004, HHS abruptly changed course. Why? Presumably to save money. HHS was trying hard to find ways to contain Medicare costs in light of increasing Medicare expenditures and the country’s fiscal situation. To that end, HHS’s new 2004 interpretation of this statutory provision had the downstream effect of significantly reducing HHS’s reim- bursements to hospitals that serve low-income patients. Whatever HHS’s precise motivations for the 2004 change, we now must focus on the statutory text and HHS’s current interpretation of it. To begin, both parties offer a dog’s breakfast of arguments about broad statutory purposes, real-world effects, surplusage, structure, consistent usage, inconsistent usage, agency deference, and the like. But this case is resolved by the most fundamental principle of stat- utory interpretation: Read the statute. The relevant text of this reimbursement provision refers to “the number of . . . patient days . . . which were made up of patients who (for such days) were entitled to benefits un- der part A.” 42 U. S. C. §1395ww(d)(5)(F)(vi)(I). Im- portantly, the statute elsewhere says that “[t]he benefits provided” under Medicare Part A consist of a patient’s “en- titlement to have payment made on his behalf . . . (subject to the provisions of this part).” §1395d(a) (emphasis added); see also §426(c) (“entitlement” means “entitlement to have payment made under, and subject to the limitations in, part A” (emphasis added)). Zero in on the phrases “entitlement to have payment made” and “for such days.” In my view (and in HHS’s view from 1986 to 2003), a patient was entitled to have payment made by Medicare for particular days in the hospital if Med- icare was obligated to pay for the patient’s care for those days. Stated the other way, a patient was not entitled to have payment made by Medicare for particular days in the Cite as: 597 U. S. ____ (2022) 3

KAVANAUGH, J., dissenting

hospital if the patient by statute could not (and did not) have payment made by Medicare for those days—for exam- ple, because the patient had other insurance, the patient had exhausted his Medicare benefits, or a third-party tort- feasor was paying. Simple enough. To be sure, patients who satisfy certain criteria (for ex- ample, those who are age 65 or older) are generally “enti- tled” to Medicare hospitalization benefits. No one disputes that point. But this reimbursement provision looks to whether the patient was entitled to have payment made by Medicare for a particular day in the hospital. And the an- swer to that question is no if Medicare by statute could not (and did not) pay for that day in the hospital. Suppose that a college says that your academic record en- titles you to a scholarship for next year if your family’s in- come is under $60,000, unless you have received another scholarship. And suppose that your family’s income is un- der $60,000, but you have received another scholarship. Are you still entitled to the first scholarship? Of course not. So too here. The Court concludes otherwise, mainly by (i) saying that “entitled to benefits” is a term of art in the Medicare stat- ute, (ii) diminishing the value of the statutory phrase “(for such days),” in part because the phrase appears in a paren- thetical, and (iii) invoking a parade of horribles about what could happen to other provisions of the Medicare statute if the Court were to read this provision as I would. With respect, none of that adds up. First, although the Medicare statute generally uses “entitled” to refer to those who meet the basic statutory criteria for Medicare benefits, the retrospective reimbursement provision at issue here fo- cuses laser-like on whether the patient was actually enti- tled to have payment made by Medicare for particular days in the hospital. A patient cannot be simultaneously entitled and disentitled to have payment made by Medicare for a particular day in the hospital. 4 BECERRA v. EMPIRE HEALTH FOUNDATION, FOR VALLEY HOSPITAL MEDICAL CENTER KAVANAUGH, J., dissenting

Second, contrary to the Court’s suggestion, we cannot brush aside the statutory phrase “(for such days)” simply because that phrase appears in a parenthetical. See Dun- can v. Walker, 533 U. S. 167, 174 (2001). Parentheticals can be important, as the Constitution itself makes clear. See, e.g., Art. I, §7 (counting days for bill to become law with “(Sundays excepted)”); Art. IV, §4 (affording federal protec- tion to States on application by the Executive but only “(when the Legislature cannot be convened)”). Third, properly interpreting this specific reimbursement provision will not “make a hash” of other provisions or ren- der the Medicare statute “unworkable.” Ante, at 11−12. We need not speculate about that point: For nearly two decades from the time that the statute was enacted in 1986 through 2003, HHS interpreted this reimbursement provision in the same way that I do. And HHS did so without any noted problems for other provisions in the Medicare statute. To sum up: A patient was not entitled to have payment made by Medicare “for such days” in the hospital if the pa- tient by statute could not (and thus did not) have payment made by Medicare for those days—for example, because pri- vate insurance was already covering the patient’s care, or the patient had exhausted his Medicare benefits. Both stat- utory text and common sense point to that conclusion. HHS’s contrary interpretation boils down to the proposition that a patient can be simultaneously entitled and disenti- tled to have payment made by Medicare for a particular day in the hospital. That interpretation does not work. And HHS’s misreading of the statute has significant real-world effects: It financially harms hospitals that serve low-in- come patients, thereby hamstringing those hospitals’ abil- ity to provide needed care to low-income communities. In my view, HHS’s 2004 interpretation is not the best reading of this statutory reimbursement provision. I re- spectfully dissent.