 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 3, 2017             Decided December 22, 2017

                         No. 16-5379

             DANA-FARBER CANCER INSTITUTE,
                      APPELLEE

                              v.

   ERIC D. HARGAN, ACTING SECRETARY, UNITED STATES
     DEPARTMENT OF HEALTH AND HUMAN SERVICES,
                     APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:14-cv-01269)


     Carleen M. Zubrzycki, Attorney, U.S. Department of
Justice, argued the cause for appellant. With her on the briefs
were Michael S. Raab, Attorney, Janice L. Hoffman, Associate
General Counsel, U.S. Department of Health & Human
Services, and Susan Maxson Lyons, Deputy Associate General
Counsel for Litigation. R. Craig Lawrence, Assistant U.S.
Attorney, entered an appearance.

    Douglas H. Hallward-Driemeier argued the cause for
appellee. With him on the brief was Deborah K. Gardner.
                                2
    Before: ROGERS, KAVANAUGH, and WILKINS, Circuit
Judges.

    Opinion for the Court filed by Circuit Judge ROGERS.

     ROGERS, Circuit Judge: The issue on appeal concerns
Medicare reimbursement owed to the Dana-Farber Cancer
Institute, Inc. for a tax that it paid monthly to the
Commonwealth of Massachusetts, the receipts of which
Massachusetts used to compensate Dana-Farber for services
provided to uninsured, low-income individuals. The Provider
Reimbursement Review Board in the U.S. Department of
Health and Human Services determined that by statute and
regulation Dana-Farber was entitled to reimbursement only for
the net of Medicare’s share of the tax and compensation Dana-
Farber received from Massachusetts. Dana-Farber appealed,
and the district court granted it partial summary judgment,
agreeing that Dana-Farber was entitled to full reimbursement
of Medicare’s share of the tax paid and vacating the Board’s
decision. The Secretary of Health and Human Services
appeals, and for the following reasons, we reverse.

                                I.

     Medicare is a federal insurance program that compensates
hospitals for certain healthcare services provided to eligible
patients. 42 U.S.C. § 1395 et seq. Eligible patients must be at
least 65 years of age or suffering from disabilities. Id. § 1395c.
The Secretary is authorized to award Medicare compensation
only for “reasonable costs,” id. § 1395f(l), which Congress has
determined is the “cost actually incurred,” id.
§ 1395x(v)(1)(A). The Secretary is also to establish methods
for determining “reasonable costs” so “the necessary costs of
efficiently delivering covered services to individuals covered
by [Medicare] will not be borne by individuals not so covered,
                               3
and the costs with respect to individuals not so covered will not
be borne by [Medicare.]” Id. The Secretary, acting through
the Centers for Medicare and Medicaid Services (“CMS”), 42
U.S.C. § 1395b-9(a)(1), (3), has by regulation defined
“reasonable costs” as “all necessary and proper costs incurred
in furnishing the [Medicare] services,” 42 C.F.R. § 413.9(a).
“All discounts, allowances, and refunds of expenses are
reductions in the cost of goods or services purchased and are
not income.” Id. § 413.98(c). Thus, “refunds of previous
expense payments are clearly reductions in costs and must be
reflected in the determination of allowable costs.” Id.
§ 413.98(d)(2).

     Since 1985, Massachusetts has levied a tax on acute care
hospitals based upon each hospital’s share of private-sector
care provided. 1985 Mass. Acts 855. CMS approved the tax
(“Hospital Tax”) as a permissible means for generating revenue
to fund Medicaid payments; the tax is uniformly imposed,
broadly based, and does not contain a “hold harmless” feature,
42 U.S.C. § 1396b(w)(1)(A)(ii), (iii), (4); 42 C.F.R.
§ 433.68(b), (f). Revenue from the Hospital Tax is deposited
into a trust fund (“Fund”), which is also funded by State
appropriations and private insurance companies. The Fund is
used to reimburse hospitals for care provided to low-income
individuals under Medicaid, as well as to compensate medical
care organizations and experimental programs supporting low-
income individuals.

     In the scheme administered by Massachusetts, acute care
hospitals are notified monthly of their estimated Hospital Tax
liabilities and Fund payments, if any. A Fund payment is
deposited into the hospital’s designated bank account. Next,
the hospital deposits its estimated tax liability minus the
anticipated Fund payment into the same account — a net
amount. Finally, Massachusetts collects the entire amount of
                                4
money in the hospital’s bank account, which is the sum of the
deposited Fund payment and tax liability.

     The parties agree that the Hospital Tax is an allowable cost
under Medicare. From fiscal years 2004 to 2008, Dana-Farber
incurred and paid a total of $23,402,239 in Hospital Tax
liability. Dana-Farber also received Fund payments during
each fiscal year, totaling $9,001,366. Dana-Farber then sought
Medicare reimbursement for the full amount of Hospital Tax
assessment attributable to Medicare. A Medicare intermediary
ruled Dana-Farber was entitled only to the net of the Hospital
Tax assessment less the Fund payments received in each fiscal
year. For example, in fiscal year 2007 Dana-Farber paid
$5,245,830 in Hospital Tax liability and received $2,479,708
in Fund payments, so the intermediary determined Dana-Farber
actually incurred only the net of these two amounts,
$2,766,122.

     Dana-Farber consolidated its challenges to the
intermediary’s decisions and appealed to the Provider
Reimbursement Review Board. See 42 U.S.C. § 1395oo; 42
C.F.R. § 405.1845. The Board affirmed the intermediary’s
decisions, except for a mathematical error not relevant to this
appeal. The Board determined that the statutory directive to
reimburse providers only for “reasonable cost[s] . . . actually
incurred,” 42 U.S.C. § 1395x(v)(1)(A), and the implementing
regulations, 42 C.F.R. §§ 413.9, 413.98, meant that Dana-
Farber was entitled to reimbursement only for the net amount
of the Hospital Tax it actually paid. Further, the Board
concluded that, under 42 U.S.C. § 1395x(v)(1)(A) and 42
C.F.R. § 413.9, “the uncompensated care payments act as a
refund to reduce cost (i.e., the Tax)” and that this interpretation
was consistent with 42 C.F.R. § 413.98 and the Provider
Reimbursement Manual, pub. 15-1, pt. 1 §§ 800, 804. Dana
Farber Cancer Inst., 2014 WL 11127854, at *10 (May 28,
                               5
2014) (emphasis added). When the Administrator of CMS
declined to review the Board’s decision, and the Secretary took
no action to revise or reverse it, the Board decision became
final. 42 U.S.C. § 1395oo(f)(1); 42 C.F.R. § 405.1877(b)(2).

     Dana-Farber appealed, arguing in the district court that the
decision to offset the Fund payments from the gross amount of
Dana-Farber’s Hospital Tax was arbitrary and capricious under
the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-
06. The parties filed cross motions for summary judgment, and
the district court partially granted Dana-Farber’s motion. The
district court reasoned that under a “plain reading” of the
regulation, a refund has a “temporal and substantive
relationship” such that “the amount paid back must be for a
‘previous expense payment’ to reduce the ‘related expense.’”
Dana-Farber Cancer Inst. v. Burwell, 216 F. Supp. 3d 49, 58-
59 (D.D.C. 2016) (quoting 42 C.F.R. § 413.98(a)). Finding the
Fund payments were made to reduce Dana-Farber’s costs of
providing care to under- and uninsured patients, and not to
reduce the expense of the Hospital Tax, the district court
vacated the Board’s decision. Id. at 59-60. The district court
also noted the Board’s interpretation of the regulation did not
account for the circumstance where a hospital’s Fund payments
exceeded the amount it paid in hospital taxes. Id. at 60.

     The Secretary appeals, and this court reviews the grant of
summary judgment de novo, “review[ing] the administrative
record directly.” Dist. Hosp. Partners, L.P. v. Burwell, 786
F.3d 46, 54 (D.C. Cir. 2015) (internal quotation marks and
citation omitted).

                               II.

    At issue is the Board’s interpretation of two regulations
expounding upon the statutory directive to reimburse only
                                6
“reasonable cost[s] . . . actually incurred,” 42 U.S.C.
§ 1395x(v)(1)(A). Under 42 C.F.R. § 413.9(b)(1), the
“[r]easonable cost of any services must be determined in
accordance with regulations establishing the method or
methods to be used.” Under 42 C.F.R. § 413.98, which
prescribes the method for taking into account offsets such as
refunds, the stated “[p]rinciple” is: “Discounts and allowances
received on purchases of goods or services are reductions of
the costs to which they relate. Similarly, refunds of previous
expense payments are reductions of the related expense.” Id.
§ 413.98(a). The regulation further provides that, under the
“[n]ormal accounting treatment,” refunds “are reductions in the
cost of goods or services purchased and are not income.” Id.
§ 413.98(c). Thus, under the plain terms of the regulation,
refunds “must be reflected in the determination of allowable
costs.” Id. § 413.98(d)(2). The Manual similarly instructs that
discounts, allowances, and refunds “are reductions of the cost”
or “related expense,” Manual § 800, explaining that “[t]he true
cost of goods and services is the net amount actually paid for
the goods or services,” id. § 804.

    Because Dana-Farber does not maintain that the
regulations are contrary to the statute, the question for the court
is whether the Board’s interpretation of the regulations was
reasonable. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504,
506, 512 (1994). The court may only “hold unlawful and set
aside agency action,” 5 U.S.C. § 706(2), that is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law,” id. § 706(2)(A). In addressing that
question, a court must accord substantial deference to an
agency’s interpretation of its own regulations, particularly
where the regulations involve “a complex and highly technical
regulatory program,” such as Medicare. Thomas Jefferson, 512
U.S. at 512 (internal quotation marks and citation omitted).
Regardless of whether a court determines a different
                                7
interpretation “best serves the regulatory purpose,” the court is
to give the agency’s interpretation “‘controlling weight unless
it is plainly erroneous or inconsistent with the regulation.’” Id.
(quoting Udall v. Tallman, 380 U.S. 1, 16-17 (1965)). We find
no such error or inconsistency.

                              A.
     The Board determined that its interpretation is “consistent
with the principles for accounting of refunds described in 42
C.F.R. § 413.98 and [the Manual] §§ 800 and 804.” Dana
Farber, 2014 WL 11127854, at *10. On appeal, the Secretary
contends “the Board properly concluded[] those principles
preclude providers from receiving Medicare reimbursement for
the costs of Hospital Tax payments to the extent that the
hospitals received payments funded by the proceeds from that
very tax, effectively reducing the net economic impact of the
assessed tax.” Appellant’s Br. 14. Regardless of whether the
payments constitute refunds or function analogous to refunds,
we conclude this interpretation was reasonable. Because the
tax is imposed to generate revenue for the Fund payments, the
tax and payments were, as the Board concluded, “inextricably
linked,” Dana Farber, 2014 WL 11127854, at *10, and thus
they were related as required by 42 C.F.R. § 413.98(a).

    The relatedness of the tax and Fund payment is clear from
the manner in which Massachusetts administered the Hospital
Tax, seeking only a net payment from Dana-Farber. In its
decision, the Board provided the following example of
Massachusetts’s administration of the Hospital Tax and Fund
payments:

         [I]f a provider is notified in advance for a particular
         month that its Tax liability will be $20 and the
         uncompensated care payment will be $5, then that
         provider need only deposit $15 into its designated
                                8
         account to cover the tax liability because the $5
         payment for uncompensated care will be deposited
         into that account prior to it being swept for the Tax
         liability. Thus, through these mechanics, the actual
         cost incurred by the Provider in this scenario is the net
         amount due to the [Fund].

Dana Farber, 2014 WL 11127854, at *10. The example shows
that the Fund payment of $5 reduced the cost of the provider’s
tax liability. See 42 C.F.R. § 413.98(c). Following the
regulatory requirement that refunds be “reflected” in the
allowable costs, id. § 413.98(d)(2), the Board took the Fund
payment into account when calculating the allowable cost.
Thus, as administered by Massachusetts, Dana-Farber’s
“actually incurred” cost is the amount of tax it deposits into the
Fund, rather than its nominal liability without reference to the
Fund payment it receives. This analysis also comports with 42
C.F.R. § 413.9(c)(3)’s direction that a provider is “reimbursed
[for] the actual costs of providing quality care,” because in the
example, the provider actually paid $15, and the Board found
this cost allowable. The example was thus consistent with the
relevant regulations, and Dana-Farber has not distinguished
what happened in its case from this example.

    Dana-Farber nonetheless offers a different interpretation,
maintaining that the denial of full compensation for Medicare’s
share of the Hospital Tax violated statutory and regulatory
requirements as well as APA procedural requirements, and it
was arbitrary and capricious.

     First, Dana-Farber maintains that it actually incurred the
full amount of the Hospital tax because the Fund payments
were neither refunds nor analogous to refunds. Appellee’s Br.
40. It interprets 42 C.F.R. § 413.98 as providing that “only
specifically enumerated categories — discounts, allowances,
                                9
and refunds, all of which [have] . . . the very purpose of making
a provider whole for some or all of the original cost — are
considered reductions of that original cost.” Appellee’s Br. 38.
Additionally, Dana-Farber insists that an offset must have a
“close substantive connection” with the cost. Id. at 37.

     Dana-Farber, much as the district court, overreads the
regulation, which defines refunds as “amounts paid back or a
credit allowed on account of an overcollection.” 42 C.F.R.
§ 413.98(b)(3). Nowhere in this definition does the agency
require the refund to have the specific purpose to reduce the tax
or substantive connection that Dana-Farber advances. See id.
§ 413.98. And even if Dana-Farber’s interpretation were
plausible, the regulatory text does not require that the
regulation be interpreted as Dana-Farber suggests. The
Board’s interpretation need not be “the only possible
interpretation.” Entergy Corp. v. Riverkeeper, Inc., 556 U.S.
208, 218 (2009). The Board reasonably focused on “the
guiding principle [of] . . . the statutory and regulatory language,
which instructs that reimbursement is allowed only for costs
actually incurred.” Appellant’s Br. 15 (quoting Abraham
Lincoln Mem’l Hosp. v. Sebelius, 698 F.3d 536, 550 (7th Cir.
2012) (internal quotation marks omitted)).

     Second, Dana-Farber maintains that the Board’s decision
violates the statutory and regulatory requirement, 42 U.S.C.
§ 1395x(v)(1)(A); 42 C.F.R. 413.9(b)(1), that Medicare costs
cannot be passed off onto non-Medicare entities. Dana-Farber
points out that the Hospital Tax and Fund payments are
calculated based upon independent factors — private sector
care and care provided to low-income individuals, respectively.
So, Dana-Farber concludes, Fund payments cannot
“simultaneously represent” compensation for services to low-
income patients and compensation for Medicare costs incurred
under the Hospital Tax. Appellee’s Br. 33. By considering the
                               10
Fund payments to be refunds of the tax liability, Dana-Farber
maintains, the Board is essentially denying Dana-Farber its
reimbursement for care to low-income patients.

      The Board did not shift Medicare costs onto non-Medicare
entities. The Board acknowledged the separate purposes of the
Hospital Tax and Fund, noting the latter is “set up solely to pay
for uncompensated care,” and explained that, nonetheless,
under “[t]he methodology utilized by” Massachusetts, the Fund
payments reduce the amount of tax Dana-Farber must deposit
in its bank account. Dana Farber, 2014 WL 11127854, at *10.
Dana-Farber minimizes the implications of Massachusetts’s
methodology by referring to it as one of “administrative
convenience.” Appellee’s Br. 26. But the fact remains that
Massachusetts has chosen to structure its compensation for
low-income care in a manner that this compensation serves to
reduce the Hospital Tax liability owed. See 42 U.S.C.
§ 1396a(a)(13)(A)(iv).

                               B.
    Dana-Farber’s remaining objections that the Board’s
decision failed to adhere to notice-and-comment requirements
and was, in any event, arbitrary and capricious are
unpersuasive.      The APA includes notice-and-comment
procedures requiring that “[g]eneral notice of proposed rule
making shall be published in the Federal Register,” 5 U.S.C.
§ 553(b), and “the agency shall give interested persons an
opportunity to participate in the rule making through
submission of written data, views, or arguments with or
without opportunity for oral presentation,” id. § 553(c). Dana-
Farber objects that the “inextricably linked” standard upon
which the Board relied violates these notice-and-comment
requirements because this standard is not contained in the
refund regulation and therefore constitutes a substantive new
                                11
legal standard that should have been subject to notice and
comment.

     As an initial matter, it is doubtful the “inextricably linked”
phrase constitutes a new rule or policy. Nowhere did the
Board’s decision state a payment must be inextricably linked
to a cost in order to constitute a refund. Instead, the Board
reasoned that because it found that the payments and tax were
inextricably linked and that the payments reduced the cost of
Dana-Farber’s tax liability, the payments “act as a refund to
reduce cost[s] (i.e., the Tax) under 42 U.S.C. § 1395x(v)(1)(A)
and 42 C.F.R. § 413.9.” Dana Farber, 2014 WL 11127854, at
*10. This interpretation is consistent with the regulatory
requirements that refunds must be related to and reduce an
expense. 42 C.F.R. § 413.98(a), (d).

     But even assuming a new “inextricably linked” standard
was announced, APA notice and comment was not required.
An agency “has the option of choosing whether to establish
new policies through notice-and-comment rulemaking or
adjudication,” Masters Pharm., Inc. v. DEA, 861 F.3d 206, 219
(D.C. Cir. 2017), and here Dana-Farber’s challenges were
addressed by adjudication. See also Nat’l Biodiesel Bd. v. EPA,
843 F.3d 1010, 1017 (D.C. Cir. 2016). Dana-Farber’s reliance
on Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014), is
misplaced. In that case, the Department of Labor issued two
letters providing special procedures, id. at 1008, that the court
concluded “substantively affect[ed] the regulated public” and
thus were substantive rules subject to notice-and-comment
requirements, id. at 1024 (internal quotation marks and citation
omitted) (alteration in original). That case did not involve an
adjudication. Neither did the court hold, as Dana-Farber
suggests, that substantive rules announced in adjudications
must undergo notice and comment. Because, even assuming
the “inextricably linked” phrase constitutes a new standard, the
                              12
agency exercised its discretion to announce the standard
through an adjudication, Dana-Farber’s procedural objection
fails.

                              C.
     To determine whether the Board’s decision was arbitrary
or capricious, the court must

         consider whether the decision was based on a
         consideration of the relevant factors and whether there
         has been a clear error of judgment. Normally, an
         agency [decision] would be arbitrary and capricious if
         the agency has relied on factors which Congress has
         not intended it to consider, entirely failed to consider
         an important aspect of the problem, offered an
         explanation for its decision that runs counter to the
         evidence before the agency, or is so implausible that
         it could not be ascribed to a difference in view or the
         product of agency expertise.

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation marks
and citations omitted). Dana-Farber suggests that the decision
was arbitrary and capricious for three reasons. None has merit.

     1. Dana-Farber views the decision as inconsistent with
CMS’s August 16, 2010 Medicare Program Rule, 75 Fed. Reg.
50,042 (“Offset Guidance”). The Offset Guidance was issued,
in part, to “clarify [CMS’s] policy concerning when provider
taxes may be considered allowable costs under Medicare.” Id.
at 50,363. The Guidance became effective October 1, 2010, id.
at 50,042, after the years at issue here. Even assuming the
Offset Guidance applies, Dana-Farber’s challenge fails.
                               13
     The Guidance states, in relevant part, that when States tax
hospitals and then pay hospitals from funds generated from that
tax,

         the treatment of these types of payments on the
         Medicare cost report should be analogous to the
         adjustments described at § 413.98 of the
         regulations. . . . In situations in which payments that
         are associated with the assessed tax are made to
         providers specifically to make the provider whole or
         partly whole for the tax expenses, Medicare should
         similarly recognize only the net expense incurred by
         the provider. Thus, while a tax may be an allowable
         Medicare cost in that it is related to beneficiary care,
         the provider may only treat as a reasonable cost the
         net expense; that is, the tax paid by the provider,
         reduced by payments the provider received that are
         associated with the assessed tax.

Id. at 50,363 (first emphasis added).

     Dana-Farber reads the word “specifically” to mean that
“only associated payments that have a specific substantive link
to the tax can properly be considered refunds.” Appellee’s Br.
39. This reading ignores the plain text of the Offset Guidance,
which lists such situations as an example of when a payment
constitutes an offset, but nowhere states that these are the only
situations where a payment is considered an offset of a tax. The
Guidance follows this specific example with the more general
principle that when a tax is “reduced by payments the provider
received that are associated with the assessed tax,” those
payments are offsets. 75 Fed. Reg. 50,363. See Breckinridge
Health, Inc. v. Burwell, 193 F. Supp. 3d 788, 796 (W.D. Ky.
2016), aff’d sub nom. Breckinridge Health, Inc. v. Price, 869
                              14
F.3d 422 (6th Cir. 2017). Dana-Farber reads into the Offset
Guidance a requirement that does not exist.

    In any event, the Board’s decision was consistent with the
Offset Guidance. The Board determined that the Fund
payments were “analogous to the adjustments” in 42 C.F.R.
§ 413.98 in that they “act as a refund” by reducing the Tax
payments Dana-Farber owed.          Dana-Farber, 2014 WL
11127854, at *10. Thus, in accordance with the Offset
Guidance, the Board concluded Dana-Farber had incurred the
reasonable cost of the net expense of the Tax payments less the
Fund payments.

     2. Dana-Farber suggests that the Board’s interpretation of
the refund regulation will produce absurd results. Its position
rests on hypotheticals involving other hospitals, including a
scenario where Hospital A pays $40,000 in tax but receives no
Fund payments, rendering the entire tax payment a
reimbursable cost. Dana-Farber poses a hypothetical where
Hospital A merges with Hospital B, which paid no tax but
received $40,000 in Fund payments, and speculates that
Hospital A cannot claim any portion of the $40,000 tax as a
reimbursable cost, an arbitrary result. Appellee’s Br. 48-49.

     The Board’s decision does not bear on the Medicare
reimbursement owed to a hospital that merges with another
hospital. Thus, “the hypothetical problem posed by [Dana-
Farber] is inapposite.” R.I. Hosp. v. Leavitt, 548 F.3d 29, 37
(1st Cir. 2008). As to Dana-Farber’s hypothetical in which a
hospital receives a greater Fund payment than the tax liability
it incurred, Appellee’s Br. 49, the Fund payment would still
reduce the cost of the tax liability incurred. And to the extent
Dana-Farber posits hypotheticals in which the incurred cost has
a purpose unrelated to low-income care, such as a payroll tax,
id. at 42-43, this simply reprises Dana-Farber’s flawed position
                               15
that Fund payments cannot represent both compensation for
low-income care and refunds of the Hospital Tax. See
discussion § II(A) at 9-10.

     3. Dana-Farber also maintains that the Board’s decision is
inconsistent with CMS’s approval of the Hospital Tax under
Medicaid. In order for a tax to be permissible under Medicaid,
it may not contain a hold harmless feature. 42 U.S.C.
§ 1396b(w)(1)(A)(iii); 42 C.F.R. § 433.68(b)(3). If a state
“provides (directly or indirectly) for any payment, offset, or
waiver that guarantees to hold taxpayers harmless for any
portion of the costs of the tax,” then the tax has a hold harmless
feature. 42 U.S.C. § 1396b(w)(4)(C)(i). Dana-Farber suggests
that by treating the Fund payments as a refund of the Hospital
Tax, the Board’s decision effectively treats the Tax as having a
“hold harmless” feature for hospitals that receive Fund
payments. Dana-Farber relies on Greater Boston Television
Corp. v. F.C.C., 444 F.2d 841, 852 (D.C. Cir. 1970).

     Although “an agency changing its course must supply a
reasoned analysis indicating that prior policies and standards
are being deliberately changed,” id., Dana-Farber has not
shown that the Board’s decision involved a change in agency
analysis of or policy involving the Tax. The Board did not
revoke or otherwise change the determination that the Hospital
Tax remains a permissible tax — and thus does not contain a
hold harmless feature — under Medicaid. Moreover, to the
extent that the decision may appear to be in tension with the
approval of the tax under Medicaid, and the court has no
occasion to decide whether it is, Dana-Farber has pointed to no
authority stating that an agency must interpret two different
statutory phrases — “reasonable cost” and “hold harmless” —
in two different statutory frameworks — Medicare and
Medicaid — in the same manner. To the contrary, the court
has held that it is “not impermissible . . . for an agency to
                              16
interpret [a] term differently in two separate sections of a
statute which have different purposes,” Verizon Cal., Inc. v.
F.C.C., 555 F.3d 270, 276 (D.C. Cir. 2009) (internal quotation
marks and citation omitted), and so it certainly may be
permissible to interpret two separate terms differently. Nor has
Dana-Farber shown that interpretations under Medicaid control
analysis under Medicare. See Abraham Lincoln, 698 F.3d at
553. “[B]ecause Medicare and Medicaid are two separate and
independent programs, we cannot conclude that CMS’s
decisions under Medicaid necessarily control [its] decisions
under Medicare, such that the [Board’s] [d]ecision at issue here
was arbitrary, capricious or contrary to law.” Id. at 554.

     Accordingly, because the Board’s interpretation is
reasonable and Dana-Farber fails to show otherwise — much
less that the interpretation violates the APA — the court
appropriately defers to it, and we reverse the grant of partial
summary judgment to Dana-Farber.
