Full opinion text
AMENDED MEMORANDUM and ORDER MUECKE, District Judge. The following Amended Memorandum and Order is issued pursuant to the court’s Order of August 22, 1991, which addressed defendant Flagstaff Medical Center’s motion to clarify and other clerical errors contained in the initial Memorandum and Order filed August 9, 1991. The Amended Memorandum and Order contains no substantive changes from the Memorandum and Order filed August 9, 1991. The court has carefully reviewed and considered • the parties’ cross-motions for summary judgment and the oral argument presented to the court, and concludes as follows: INTRODUCTION “An aura of inevitably is upon us. It is no longer acceptable morally, ethically, or economically for so many of our people to be medically uninsured or seriously under-insured.” Such was the conclusion of a recent editorial in The Journal of the American Medical Association. Indeed, the Journal considers the problem of uninsured and underinsured to be so critical that it devoted an entire issue to the access to health care crisis in this country. See The Journal of the American Medical Association, Vol. 265, No. 19 (May 15, 1991). “Many crises are born of a series of small events that one day reach critical mass.” Friedman, E., “The Uninsured: From Dilemma to Crisis,” Id. at 2493. So it has been with the uninsured and underinsured. Although Americans spend more on health care per capita than any other country in the world, serious problems concerning access to health care remain. Bobinski, Mary A., “Unhealthy Federalism: Barriers to Increasing Health Care Access for the Uninsured,” 24 U.C. Davis L.Rev. 255, 257 (1990). Estimates of Americans lacking any type of insurance coverage (public or private) place the number between 31 and 36 million. Friedman, supra, at 2491. These estimates represent approximately thirteen to fifteen percent of the population. Almost as many or more may be underinsured. Bobinski, supra, at 262-63. Clearly, “access to basic medical care for all our inhabitants is still not a reality in this country.” Journal of American Medical Association, supra, at 2566. Although the current health care crisis is one that must be addressed by the legislative and executive branches of our government, the court believes it is necessary to acknowledge the crisis in order to understand adequately the context of the current litigation. BACKGROUND This case is a consolidated matter involving indigent access to health care under the Hill-Burton Act. 42 U.S.C. § 291, et seq. The Hill-Burton Act (named after its Senate sponsors, Lister Hill and Harold H. Burton), officially known as the 1946 Hospital Survey and Construction Act, was one of four major postwar medical programs. Hill-Burton was the result of a plan for postwar hospital construction developed by the American Hospital Association. Shortly before the war ended, the American Hospital Association “decided to organize a national commission (Commission on National Health Care) to develop — or, perhaps more accurately, to develop support for — a national program for hospitals.” Starr, The Social Transformation of American Medicine 348 (1982). The Commission, as might be expected, recommended a huge program of hospital construction. Id. at 341. Advocates of Hill-Burton originally argued that the program would help provide access to health care for families and communities that otherwise could not afford the cost. The allocation of funds favored those with low per capita income, and, in this regard, the law was redistributive. Id. at 350. Although proposals during the late 1940s favored the financing of comprehensive medical services, the measures adopted put the power of finance behind hospitals alone. Id. at 348. The purpose of the Hill-Burton Act was to assist states in “furnishing adequate hospital, clinic, or similar services to all their people.” Pub.L.No. 79-725, § 601, 60 Stat. 1040, 1041 (1946). The Act provided federal grants, and later loans, loan guarantees, and interest subsidies for hospital construction and modernization. 42 U.S.C. § 291a. Under the Hill-Burton Act, health care facilities could not receive hospital construction funds unless the facilities provided an assurance that there will be made available in the facility or portion thereof to be constructed or modernized ... a reasonable volume of services to persons unable to pay therefor____ Id. § 291e(e)(2). This assurance became known as the “reasonable volume” or “uncompensated care” assurance. American Hosp. Ass’n v. Sckweiker, 721 F.2d 170, 173 (7th Cir.1983), cert. denied, sub nom., American Hosp. Ass’n v. Heckler, 466 U.S. 958, 104 S.Ct. 2169, 80 L.Ed.2d 553 (1984). Although the Hill-Burton Act tied the funding of hospital construction to a commitment by the hospital to provide uncompensated care to indigent persons, the provision of such care was largely an illusion. In great part, this was due to the fact that for the first twenty-six years of the Act, “enforcement of the Hill-Burton Act’s uncompensated care ... assurances existed only in precatory, exhortative language.” Blumstein, J., “Court Action, Agency Reaction: The Hill-Burton Act as a Case Study,” 69 Iowa L.Rev. 1227, 1238 (1984). The regulations issued between 1947 and 1974 essentially tracked the language of the statute. During this period, “the hospitals receiving aid displayed a marked reluctance to give even the most token charitable care.” American Hosp. Ass’n, 721 F.2d at 170; see Comment, “Provision of Free Medical Services by Hill-Burton Hospitals,” 8 Harv.C.R.-C.L.L.Rev. 351, 352 (1973). Indeed, the Senate Committee on Labor and Public Welfare, in reviewing the Hill-Burton enforcement experience, concluded that federal and state agency compliance efforts reflected a “sorry performance.” S.Rep. No. 1285, 93d Cong., 2d Sess. 61, reprinted in 1974 U.S.CODE CONG. & ADMIN.NEWS 7842, 7900. Widespread non-compliance by many hospitals and the inability or unwillingness of the Department of Health and Human Services (“HHS”) (and its predecessor agency, Health, Eduction and Welfare) to ensure hospital compliance resulted in the denial of a basic necessity of life for many indigent patients during this period. In response to a series of lawsuits, see, e.g., Euresti v. Stenner, 458 F.2d 1115 (10th Cir.1972); Cook v. Ochsner Foundation Hosp., 61 F.R.D. 354 (E.D.La.1972), the Secretary in 1972 began to issue regulations that defined standards for compliance with the assurances. These regulations, among other things, defined a “reasonable volume of services” and “persons unable to pay,” and established standards for compliance and initiated various reporting requirements. American Hosp. Ass’n, 721 F.2d at 173. In 1975, Congress enacted a new federal assistance program for health care facility construction and modernization that replaced Title VI, the title that covered Hill-Burton. 42 U.S.C. § 300q et seq. This later Act, which added Title XVI to the Public Health Service Act, provides for assurances similar to those in Title VI but adds teeth to the Hill-Burton Act’s requirements as well. Title XVI grants the Secretary of Health and Human Services extensive investigative and enforcement powers over facilities assisted under both Title VI and Title XVI of the Public Health Service Act. id. at § 300s-6. “Apparently in recognition of the compliance problems which had arisen under the Hill-Burton program, Title XVI mandates, rather than permits, the Secretary to prescribe by regulation,” American Hosp. Ass’n, 721 F.2d at 174, the general manner in which each entity which ... has received financial assistance under [either Title XVI] or [Title VI] shall be required to comply with the assurance required to be made at the time such assistance was received and the means by which such entity shall be required to demonstrate compliance with such assurances. 42 U.S.C. § 300s(3). In response to the congressional mandate, the Secretary of HHS (then, Health, Education and Welfare) in 1979 adopted regulations that, among other things, set health care facilities’ uncompensated care obligations at specific levels, established eligibility criteria for indigent patients, and required facilities to make eligibility determinations within two days of a request for services. 44 Fed.Reg. 29,372-409 (May 18, 1979). Under the 1979 regulations, facilities could not obtain credit toward their uncompensated care obligations in cases in which they failed to make eligibility determinations within two days of a request. 42 C.F.R. § 124.508(a) (1979). According to the preamble of the finalized regulations, “[c]lear recordkeeping requirements are ... established to avoid the current problem of distinguishing between uncompensated services qualifying for credit and ‘bad debts,’ ‘courtesy allowances’ and other writeoffs that do not qualify.” 44 Fed. Reg. 29,374 (May 18, 1979). In 1987, HHS substantially revised the 1979 regulations. HHS revised the timing requirements for eligibility determinations by retaining the two-day requirement for requests for services made before admission or treatment, but eliminating the two-day requirement in situations where liability for the cost of the services has already been assumed by the provider. 42 C.F.R. § 124.507 (1990). The timing requirement for eligibility revision was part of a new standard, “substantial compliance,” adopted by HHS under which facilities would be denied credit only in a limited number of circumstances. See 42 C.F.R. § 124.511(b)(1) & 124.512(c) (1990). In effect, under the new regulations, a facility that substantially complies with the more important regulatory requirements can receive full credit for the claimed uncompensated services, despite failure to comply in particular cases. If, however, an institution systematically fails to comply with an important requirement, it may lose Hill-Burton credit for the entire year, including credit for accounts that are otherwise eligible. Id. Following the adoption of the 1987 regulations, HHS implemented an “interpretative change” to revoke retroactively the effect of the 1979 two-day rule. HHS’ revised interpretation was published in the Federal Register, effective November 7, 1988. Under the 1988 interpretative change, HHS decided to reinstate credit to all facilities denied credit between 1980 and 1988 for failing to give timely determinations. See 53 Fed.Reg. 44,954-55 (Nov. 7, 1988). This change resulted in the reinstatement of $31 million to facilities nationwide. Plaintiffs’ Response to Federal Defendant's Motions for Summary Judgment and Plaintiffs’ Motion for Partial Summary Judgment (“Plaintiffs’ Motion as to HHS”), Statement of Facts (“SOF”), at para. 24. This amount, had it not been reinstated, would have been available for uncompensated care for indigent patients. HHS’ revised interpretation was prompted by two events. First, according to HHS, the substantial compliance standard adopted by HHS on December 3, 1987, substantially revised both the timing requirements for eligibility determinations and the enforcement scheme. The new regulations, according to HHS, “rendered moot for most purposes” the issue of compliance with the two-day working requirement. 53 Fed.Reg. 44,955 (Nov. 7, 1988). The second event was a decision by the District Court for the District of Minnesota, Douglas County Hosp. v. Bowen, (No. 6-85-1078) (D.Minn., Aug. 3, 1988). The Parties Plaintiff class (“Mazon”) consists of all persons who have resided, are presently residing or will reside in Coconino County and, who have been, are being or will be denied Hill-Burton uncompensated care by Flagstaff Medical Center (“FMC” or “Flagstaff”). First Amended Complaint, at para. 18. Defendants consist of FMC and HHS. In the first action (CIV No. 88-1881-PCT-CAM), FMC sued HHS, challenging HHS’ decision to disallow credit towards Flagstaff’s Hill-Burton obligation for uncompensated services allegedly provided by the hospital during fiscal year 1980. The parties filed a stipulated dismissal with prejudice of this action on January 22, 1990. The second action (CIV No. 89-0576-PCT-CAM) was filed by the Mazon plaintiffs against both FMC and HHS. As to Flagstaff, the Mazon plaintiffs claim that the hospital failed to provide uncompensated care in violation of the Hill-Burton Act, its regulations, and other federal and state laws. As to HHS, plaintiffs challenge the revised interpretation of the two-day eligibility determination regulation that required the denial of credit when a facility failed to make an eligibility determination within two days. Plaintiffs also challenge HHS’ “interpretative change” that reinstated credit to all facilities. DISCUSSION Mazon Plaintiffs v. HHS Plaintiffs challenge two regulatory changes adopted by HHS. First, as discussed earlier, they challenge HHS’ abandonment of the 1979 regulation’s requirement of automatically denying credit in each case in which a facility failed to make a timely two-day determination. In particular, they challenge the adoption of the “substantial compliance” standard under which facilities would be denied credit only in a limited number of circumstances. 52 Fed.Reg. 46,022-39 (Dec. 3, 1987). According to plaintiffs, this new standard allows facilities to take credit for care provided without making timely eligibility determinations. Plaintiffs’ Motion as to HHS, at 2. Second, plaintiffs challenge HHS’ 1988 “interpretative change” published in the Federal Register without formal rulemaking that reinstated credit to all facilities that had been denied credit between 1980 and 1987 for violating the 1979 timely determination requirements. 53 Fed.Reg. 44,954-56 (Nov. 7, 1988). According to plaintiffs, the 1987 regulations and the 1988 interpretative change are inconsistent with the Hill-Burton Act, violate the Administrative Procedure Act (“APA”), and conflict with due process standards. I. Standard, of Review To grant summary judgment the court must determine that there is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party has the burden to prove that there is no material fact and that she is entitled to judgment as a matter of law. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The evidence presented by the moving party must be more than a mere scintilla; it must be probative enough that a fair-minded jury could return a verdict for the moving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). The party opposing a motion for summary judgment must set forth more than mere allegations or denials; the response must include specific facts demonstrating a genuine issue for trial. Id. at 248, 106 S.Ct. at 2510; Fed.R.Civ.P. 56(e). Substantive law determines which facts are material. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 249, 106 S.Ct. at 2510. The dispute must also be genuine. A dispute about a material fact is genuine if “the evidence is such that a reasonable jury could not return a verdict for the nonmoving party.” Id. at 248, 106 S.Ct. at 2510. There is no issue for trial unless there is sufficient evidence favoring the nonmoving party. “If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.” Id. at 249-50, 106 S.Ct. at 2511 (citations omitted). II. Standing and Private Right of Action HHS argues that plaintiffs have failed to meet the constitutional prerequisites for standing. HHS’ Supplemental Memorandum, at 2. HHS also argues that plaintiffs do not have a private right of action under the Hill-Burton Act. HHS’ Motion for Summary Judgment on Claims Raised in Plaintiffs’ First Amended Complaint (“HHS Motion as to First Amended Complaint”), at 3. Since standing is a jurisdictional prerequisite to the case or controversy requirement of Article III of the Constitution, it must first be determined whether plaintiffs have standing to present the question of statutory interpretation of whether a private cause of action exists against HHS. See Gillis v. U.S. Dept. of Health and Human Services, 759 F.2d 565, 570 n. 5 (6th Cir.1985). “Article III requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,’ ... and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision.’ ” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quotations and citations omitted); American Arab Anti-Discrimination Committee v. Nelson, 940 F.2d 445, 449 (9th Cir.1991). Section 10 of the APA confers standing to obtain judicial review of agency action upon those who can show “that the challenged action had caused them ‘injury in fact,’ and where the alleged injury was to an interest ‘arguably within the zone of interests to be protected or regulated’ by the statutes that the agencies were claimed to have violated.” Sierra Club v. Morton, 405 U.S. 727, 733, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688-89, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973); Lujan v. National Wildlife Federation, — U.S. -, 110 S.Ct. 3177, 3185-86, 111 L.Ed.2d 695 (1990). “A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency’s action.” SCRAP, 412 U.S. at 688-89, 93 S.Ct. at 2416. HHS argues that any injury plaintiffs assert as a result of the 1987 substantial compliance standard “is too remote and speculative to sustain standing.” HHS’ Supplemental Memorandum, at 3. They further argue that plaintiffs have not been injured by the application of the 1988 interpretative rule to Flagstaff. Id. at 8. Plaintiffs are the beneficiaries of the Hill-Burton program at Flagstaff Medical Center. First Amended Complaint, at 18. This is not contested by HHS. Plaintiffs’ claim that HHS exceeded the permissible bounds of regulation clearly is within the zone of interests protected by the Hill-Burton Act. See Colonial Penn Ins. Co. v. Heckler, 721 F.2d 431, 435 (3rd Cir.1983) (insurance company complaining of regulations that made it primarily liable for medical benefits despite policy provision making it secondarily liable was within zone of interest protected by statute underlying the regulation). In addition, the zone of interests test must be applied “in view of Congress’ evident intent to make agency action presumptively reviewable.” Clarke, 479 U.S. at 399, 107 S.Ct. at 757. The test “seeks to exclude those plaintiffs whose suits are more likely to frustrate than to further statutory objectives.” Id. at 397 n. 12, 107 S.Ct. at 756 n. 12. Here, it is clear that plaintiffs’ action, by claiming that HHS’ two administrative decisions deny them uncompensated medical care, is intended to further one of Hill-Burton’s primary objectives: to provide a reasonable volume of free care to those unable to pay. Finally, the court is persuaded that plaintiffs have alleged the requisite “injury in fact.” Assuming plaintiffs’ allegations are true and capable of proof at trial, HHS’ actions in issuing the 1987 regulations and the 1988 interpretative rule injured plaintiffs by reducing the total amount of free care FMC must provide. For example, HHS admits that FMC was relieved of $85,-245 in uncompensated care as a result of the 1988 interpretative change. HHS’ Supplemental Reply, at 6. If the court invalidates the 1988 interpretative rule, plaintiffs will have in effect suffered an injury in the amount of $85,245. This injury is hardly speculative. It is irrelevant, as HHS asserts, that FMC exceeded its obligation “by $183,672, and therefore plaintiffs were not harmed by virtue of the 1988 change.” Id. at 7. This assertion is directed to the mootness and, to a certain extent, the merits of plaintiffs’ claim. It has nothing to do with whether plaintiffs have or will suffer an injury as a result of the 1988 interpretative change. Also, should the court invalidate the 1987 regulations — which no longer require denial of credit when a facility fails to make an eligibility determination within two days— plaintiffs .arguably could have suffered an injury in fact for the amount of care given by FMC between March 12, 1990, and April 30, 1990. HHS responds by arguing that plaintiffs’ claim of injury is premised on assumptions that FMC failed to make determinations of eligibility within two days and is contingent upon acceptance of plaintiffs’ “erroneous interpretation” of HHS’ regulations. HHS’ Supplemental Reply, at 4-5. HHS’ argument is directed to the merits of plaintiffs’ action and not the question of standing. Such arguments do no more than “trivialize the standing doctrine.” Valley Forge Christian College, 454 U.S. at 514, 102 S.Ct. at 780 (Stevens, J., dissenting). Contrary to HHS’ assertion, plaintiffs are not asking the court to assume that FMC has failed to make eligibility determinations within two days. Rather, plaintiffs claim that the 1987 regulations (substantial compliance standard), by not automatically denying credit when a facility fails to follow the two-day rule, is inconsistent with one of Hill-Burton’s primary objectives: to provide uncompensated care to indigent people. Whether the 1987 regulations are consistent with Hill-Burton has little to do with whether FMC actually complied with the two-day rule, for what is at issue here is the result of such failure; namely, if, in order to be consistent with the Act, automatic denial of credit is required, or if failure to follow the two-day rule may just be one factor in determining whether a facility has substantially complied with the Act’s requirements. Finally, HHS asserts that “even if Flagstaff, in the future, fails to provide determinations of eligibility within two working days (where a request for care is made prior to service), plaintiffs assume that this failure would discourage indigent patients from seeking care.” HHS’ Supplemental Reply, at 5-6. How this assertion relates to the question of standing is unclear, especially in light of plaintiffs’ claim that the 1987 regulations are inconsistent with Hill-Burton. Also, HHS’s assertion appears to be premised on a notion that even if the court invalidated the 1987 regulations and found that FMC failed to provide eligibility determinations within two days, there would still be no injury because it is not certain that such a finding would discourage plaintiffs from seeking care. In other words, it is not certain that, even if the court finds that FMC failed to follow the two-day rule, any benefit will have been realized by plaintiffs. In Watt v. Energy Action Educational Foundation, 454 U.S. 151, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981), the Supreme Court found that the State of California had standing to assert that the Secretary of Interior failed to follow a statutory mandate to test different royalty systems in leasing offshore gas and oil production rights. The Secretary argued that standing should be denied because even if California prevailed, the Secretary could still use the same royalty system on parcels leased off the California coast. The Court held that California had standing, finding that the injury was caused by the Secretary’s failure to experiment with other royalty systems. Id. at 162, 102 S.Ct. at 213. The Court based its finding on the fact that if the Secretary found, after experimentation, that another royalty system was more profitable, it could safely be assumed that that system would be applied to the leases off California. Id. In the instant case, as in Watt, it might be that plaintiffs might in fact receive no benefit. However, that is not sufficient to deny them the opportunity to receive the benefit. If this court were to deny plaintiffs’ standing, it would in effect be denying plaintiffs the opportunity — regardless of whether there is a correlation between the two-day rule and the seeking of care — to obtain uncompensated medical care. In short, the court is persuaded that plaintiffs have standing to maintain this action. They have alleged an injury in fact that stems from a final agency action, and the alleged injury is arguably within the zone of interests protected and/or regulated by the Hill-Burton Act. Having concluded that plaintiffs have standing, the court must now consider — before reaching the merits of plaintiffs’ claim — whether plaintiffs have a private right of action under the Hill-Burton Act. The Act itself does not expressly grant a right of action against the Secretary. Rather, the statute provides that an individual may bring an action against a facility to effectuate compliance after filing an administrative complaint with the Secretary if the Secretary dismisses the complaint, or the Attorney General fails to bring a civil action for compliance within six months. 42 U.S.C. § 300s-6. HHS argues that plaintiffs have no private right of action under the Hill-Burton Act “to challenge the Secretary’s alleged failure to meet his enforcemént obligations under the Act.” HHS Motion as to First Amended Complaint, at 3. Defendants rely on two cases that hold that the Hill-Burton Act provides no express or implied private right of action to challenge the Secretary’s alleged failure to meet her enforcement obligations under the Act. Gillis, 759 F.2d at 573-74; Davis v. Ball Memorial Hosp. Ass’n, 640 F.2d 30, 43-47 (7th Cir.1980). In Davis, the Seventh Circuit, in discussing the availability of a private right of action explained that Congress “acting against this backdrop of suits against both state and federal defendants, ... chose to amend the statute to acknowledge a private right of action against the facilities while placing — without any similar acknowledgement — enforcement powers in the Secretary.” Davis, 640 F.2d at 46; accord Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983) (if “Congress includes particular language in one section of a statute but omits it in another ... it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion”). In Gillis, plaintiff class alleged that HHS had failed to monitor and enforce the compliance of hospitals with relevant Hill-Burton provisions relating to uncompensated or reduced cost services. 759 F.2d at 567. The Gillis Court agreed with Davis, supra, and found that “to the extent that plaintiffs seek to compel HHS to investigate, ascertain and effect compliance, ... there exists no implied cause of action under Hill-Burton.” Id. at 574. Under Gillis and Davis, indigent patients may not sue the Secretary for failing to bring enforcement actions against hospitals that violate Hill-Burton’s requirements. Indeed, this is consistent with the Act’s provision that allows an individual to bring an action against a facility to effectuate compliance. 42 U.S.C. § 300s-6. However, the issue here is whether indigent patients may sue the Secretary for enacting regulations that conflict with the statute. Plaintiffs are not suing to compel enforcement. Rather, they claim that the Secretary exceeded his authority by promulgating regulatory changes that conflict with the Hill-Burton statute. Cf. American Hosp. Ass’n v. Schweiker, 721 F.2d at 176 (not within Secretary’s authority to promulgate regulations that conflict with governing Hill-Burton statute). To the extent that the Secretary’s actions constitute a “final agency action,” there appears to be no reason for not allowing the suit to proceed against the Secretary. Indeed, if plaintiffs cannot challenge the issuance of regulations that they claim conflict with the statute, the Secretary’s authority would remain virtually unchecked. Plaintiffs’ claims are not intended to compel enforcement. Rather, their claims challenge the Secretary’s authority to promulgate regulations that conflict with the statute. The mere fact that the new regulations affect the Secretary’s enforcement function is, at most, incidental to the issue of whether the Secretary exceeded her authority. III. The Hill-Burton Act Having concluded that plaintiffs have standing and a private right of action, the next issues to consider are whether HHS’ 1987 regulations and 1988 interpretative change violate the Hill-Burton Act. As discussed earlier, the 1987 regulations imposed a “substantial compliance” standard under which facilities would be denied credit only in a limited number of circumstances. 52 Fed.Reg. 46,022-39 (Dec. 3, 1987). In effect, the substantial compliance standard abandoned the requirement of automatically denying credit in each case in which a facility failed to make a timely two-day determination. The 1988 interpretative change reinstated credit to all facilities that had been denied credit between 1980 and 1987 for violating the two-day eligibility determination requirement. A. The 1987 Regulations In Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Supreme Court articulated the approach a court must take in determining whether an agency’s construction of a statute conflicts with the congressional intent underlying the statute: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court simply does not impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute, [footnotes omitted]. The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress. Morton v. Ruiz, 415 U.S. 199, 231 [94 S.Ct. 1055, 1072, 39 L.Ed.2d 270] (1974). If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. Id. 467 U.S. at 842-44,104 S.Ct. at 2781-82; see also, Sullivan v. Everhart, 494 U.S. 83, -, 110 S.Ct. 960, 964, 108 L.Ed.2d 72 (1990). The court need not conclude that the agency’s construction is the only reasonable interpretation of the statute, or that the court would have reached the same conclusion. The agency’s interpretation need only be reasonable and not contrary to congressional intent. Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. at 1782 n. 11; Cranston v. Clark, 767 F.2d 1319, 1323 (9th Cir.1985); Zarr v. Barlow, 800 F.2d 1484, 1486 (9th Cir.1986). Although regulations promulgated by agencies charged with administration of statutory law are accorded substantial deference, Blum v. Bacon, 457 U.S. 132, 141, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728 (1982), a court must reject administrative constructions that are an unreasonable interpretation of the statute or contrary to clear congressional intent. F.E.C. v. Democratic Senatorial Campaign Comm’n, 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981) (courts must reject administrative constructions of statute, whether reached by rulemaking or adjudication, that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement); Shoemaker v. Bowen, 853 F.2d 858, 861 (11th Cir.1988) (court noted that it “need not accept an agency’s interpretation [of a statute] that frustrates the underlying congressional policy”); New York State Dep’t of Social Services v. Bowen, 846 F.2d 129, 134 (2nd Cir.1988) (“The deference ordinarily due the federal agency charged with interpreting a statute is unnecessary and inappropriate ... where HHS’s interpretation is not only inconsistent with the language of the ... statute and its purpose, ... but also in defiance of common sense.”). An “agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is ‘entitled to considerably less deference’ than a consistently held agency view.” INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n. 30, 107 S.Ct. 1207, 1221 n. 30, 94 L.Ed.2d 434 (1987); Watt v. Alaska, 451 U.S. 259, 273, 101 S.Ct. 1673, 1681, 68 L.Ed.2d 80 (1981). Where an agency changes its course by rescinding a rule or reversing a prior statutory interpretation, it “is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut., 463 U.S. 29, 42, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983); Seldovia Native Ass’n, Inc. v. Lujan, 904 F.2d 1335, 1345 (9th Cir.1990). The agency’s interpretation, though entitled to deference, must acknowledge and provide a reasonable rationale supporting its departure from its prior views. Seldovia, 904 F.2d at 1345; Mobil Oil Corp. v. E.P.A., 871 F.2d 149, 152 (D.C.Cir.1989). Plaintiffs argue that in enacting Hill-Burton, Congress intended to expand the availability of uncompensated care to indigent persons and that the 1987 regulations are clearly inconsistent with that intent. According to plaintiffs, the substantial compliance standard instituted by the 1987 regulations has the effect of allowing facilities to receive credit for care given without timely eligibility determinations and therefore conflicts with the Hill-Burton Act’s intent to expand the availability of uncompensated care. Plaintiffs’ Cross-Motion, at 11. This “change in enforcement ... presents a sharp departure from the previous 1979 rule under which facilities would not receive credit any time they were found to have failed to give a timely determination.” Id. at 14 (emphasis in original). HHS responds that the “1987 substantial compliance regulations are clearly a proper exercise, of the Secretary’s broad authority to administer the uncompensated care assurance under the Hill-Burton Act.” HHS’ Motion as to First Amended Complaint, at 6. Furthermore, according to HHS, the 1987 regulations created more of an incentive for facilities to comply with the eligibility determination regulations. Id. at 8. As a starting point, it must first be determined whether Congress “unambiguously expressed [an] intent” regarding the question at issue. Chevron, 467 U.S. at 843, 104 S.Ct. at 2781. Although the court agrees that the Hill-Burton Act “was intended to be more than a construction statute” and that the “provision of medical services for the indigent was a major concern among supporters of the bill, ...” American Hospital Ass’n v. Schweiker, 721 F.2d at 176-77, neither the plain language of the Hill-Burton Act nor the legislative history provide much guidance as to whether the substantial compliance regulations are consistent with Hill-Burton. The statute merely states that in order for a hospital to receive construction funds, it must provide “a reasonable volume of services to persons unable to pay.” 42 U.S.C. § 291c(e)(2). The statute enacted by Congress did not define a “reasonable volume of uncompensated services” nor did it address which services would qualify for “credit” under the Act. Congress also did not address how facilities should demonstrate compliance with the Act’s uncompensated care assurances, the relationship between “bad debts” and the Hill-Burton assurances, or the timing of eligibility determinations. Since the Hill-Burton Act is silent or, at the very best, ambiguous, with respect to the issues before the court, the Court must consider whether there is an express delegation of authority to elucidate by regulation with respect to the substantial compliance regulations. “If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.” Chevron, 467 U.S. at 843-44, 104 S.Ct. at 2782. Although it is arguable as to whether an explicit delegation of authority exists in this case, it seems fairly clear that Congress intended, at the very least, an implicit delegation of authority to HHS to render the substantial compliance regulations. The Hill-Burton Act provides in relevant part: The Surgeon General ... and the Secretary of Health and Human Services shall by general regulations prescribe— (e) that the State plan shall provide for adequate hospitals, and other facilities for which aid under this part is available, for all persons residing in the State, and adequate hospitals ... to furnish needed services for persons unable to pay therefor. Such regulations may also require that before approval of an application for a project is recommended, ... assurance shall be received by the State from the applicant that ... there will be made available in the facility or portion thereof to be constructed or modernized a reasonable volume of services to persons unable to pay therefor, but an exception shall be made if such a requirement is not feasible from a financial viewpoint. 42 U.S.C. § 291c(e). The Act further states: (b) The Surgeon General shall approve such application if sufficient funds to pay the Federal share of the cost of such project are available from the appropriate allotment to the State, and if the Surgeon General finds ... (3) that the application is in conformity with the State plan approved under section 291d of this title and contains an assurance that in the operation of the project there will be compliance with the applicable requirements of the regulations prescribed under section 291c(e) [dealing with the provision of medical services to “persons unable to pay”]. Id. at § 291e(b)(3); see also, American Hosp. Ass’n v. Schweiker, 721 F.2d at 176 (Secretary’s authority, which is “very broad,” requires the issuance of “general regulations” relating to compliance by facilities with the uncompensated care provisions of the Act); Wyoming Hosp. Ass’n v. Harris, 727 F.2d 936, 939 (10th Cir.1984) (upholding 1979 regulations as a valid exercise of the Secretary's broad authority under the Hill-Burton Act to promulgate general regulations). In light of the intent expressed by the Act’s language and the case law interpreting the language, the court is convinced that Congress did not expressly foreclose the substantial compliance regulations as an interpretation of the Hill-Burton Act. Finally, having concluded that the substantial compliance regulations are an allowable construction of the Act that was implicitly delegated to HHS, the court must next determine whether HHS’ interpretation falls within the boundaries assigned to HHS, i.e., are the substantial compliance regulations a reasonable interpretation of the Hill-Burton Act. Since HHS arguably changed its course by, in effect, rescinding a rule, it “is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 42, 103 S.Ct. at 2866. The substantial compliance approach, according to HHS, “is an effort to look at more facilities in less time, ensuring more enforcement nationwide, and enabling HHS to discern compliance problems at an early stage, benefiting both facilities and potential recipients of uncompensated care.” HHS’ Motion as to First Amended Complaint, at 9-10. According to HHS, the Secretary, after eight years of administering the program under the 1979 regulations, made a reasonable determination that the “substantial compliance” standard presents a significant “incentive” for a facility to operate its program in conformity with the regulations. 52 Fed.Reg. 46,023 (Dec. 3, 1987). The Secretary found that the account-based approach “skewed the incentive for compliance toward some regulatory requirements and away from others.” Id. Also, audits of individual accounts “consumed the Department’s limited resources, ... lessening its ability to monitor the universe of Hill-Burton facilities for systemic problems of compliance.” Id. For example, as of September 1988, 1730 facilities out of 3532 had never been assessed for compliance under the 1979 regulations. HHS’ Motion as to First Amended Complaint, SOF, at para. 21. Plaintiffs argue that the 1987 “substantial compliance” regulations are inconsistent with the Hill-Burton Act because the regulations permit facilities “to obtain credit for care given without timely [eligibility] determinations.” Plaintiffs’ Cross-Motion, at 13. Specifically, plaintiffs claim that the 1987 regulations are inconsistent with Hill-Burton insofar as they allow facilities to convert uncompensated services obligations into a means for writing off bad debts. Id. at 8. Plaintiffs’ argument is based on their assertion that the regulations conflict with the Act’s legislative intent. Plaintiffs cite legislative history that shows that when referring to the Act’s assurances, the primary objective was to expand the availability of uncompensated care to indigent persons. See Plaintiffs’ Motion, at 6-7. In addition, courts have concluded that Hill-Burton was intended to expand the availability of uncompensated care to indigent people: [T]he legislative history of the Hill-Burton Act, both in its origins and as it has evolved through amendment, indicates that it was intended to be more than a construction statute____ [T]he records of the Senate hearings demonstrate that the provision of medical services to indigents was a recurrent theme. American Hosp. Ass’n v. Schweiker, 721 F.2d at 176; Euresti, 458 F.2d at 1118 (“[T]he legislative history and the expressed purposes of Congress indicate that the Act was passed to ensure that the indigent would be supplied sufficient hospital services when needed.”). Finally, plaintiffs claim that “HHS has provided no reasonable rationale justifying its departure from prior policy.” Id. at 14. Plaintiffs' argument that the substantial compliance standard is inconsistent with Hill-Burton appears to be premised on its belief that (1) the new standard allows hospitals to use their Hill-Burton obligation to write off “bad debts” by allowing hospitals “to take credit for care they would have provided anyway” and (2) the allowance of such credit unambiguously conflicts with congressional intent underlying the Hill-Burton Act. Plaintiffs’ Cross-Motion, at 9. Congress no doubt intended that facilities receive credit for medical services provided to those persons unable to pay; not for those unwilling to pay. Therefore, plaintiffs’ argument is valid to the extent that facilities credit “bad debts” incurred by wow indigent patients. Crediting bad debts incurred by nonindigent patients would surely be inconsistent with Hill-Burton’s statutory assurances that services be provided only to those “unable to pay.” Plaintiffs’ concern that certain patients may refrain from seeking medical services because of uncertainty as to who will pay for the care is well-taken. Still, the fact remains that regardless of when the eligibility determination is made, a hospital may only credit the amount from patients “unable” to pay. The two-day eligibility determinations rule has always permitted the write off of “bad debts” from those who are unable to pay. Although most patients, except for those in need of emergency treatment, probably seek a determination of their Hill-Burton eligibility prior to the rendering of services, the regulations provide that a request for uncompensated care may be made at any time, including after a collection action is initiated. 42 C.F.R. § 124.-502(k) (1990) (defining “request for uncompensated' services”). Thus, plaintiffs’ concern that elimination of the two-day eligibility determination rule will allow facilities to write off “bad debts” is unfounded for it is clear that only the “bad debts” of indigent patients may be credited to a hospital’s Hill-Burton obligation. The court is convinced that Hill-Burton’s statutory assurances to provide “a reasonable volume of services to persons unable to pay therefor” is satisfied in situations where patients, after the fact, are found to be indigent, thereby qualifying for Hill-Burton services. However, it should be noted that the court expects that these situations will be extremely rare. In most instances, the two-day rule should apply, especially in circumstances where patients might refrain from seeking care because they are unsure about their duty to pay for the care. At this point, the only situation the court can envision in which more than two-days is necessary to determine eligibility is where the patient, after being provided with emergency treatment, is discharged before making a request for uncompensated services. In that situation, the regulations provide that an eligibility determination must be made within the “first full billing cycle” following the request. 42 C.F.R. § 124.-507(c)(2)(1990). In short, the court is persuaded that the substantial compliance regulations, under the Chevron standard of deference, are consistent with the objectives of the Hill-Burton Act. It seems fairly clear that Congress intended to delegate to HHS the authority to render the subject regulations of the Hill-Burton Act. It also seems clear that the 1987 regulations are not inconsistent with the Act and that the Secretary made a reasonable determination that the substantial compliance standard presents a significant incentive for a facilities to operate their Hill-Burton program in conformity with the regulations. B. The 1988 “Interpretative” Change In 1988, HHS implemented an “interpretative change” that retroactively revoked the effect of the 1979 rule. See 53 Fed. Reg. 44,954-56 (Nov. 7, 1988). The 1988 interpretative change only applies to actions by facilities prior to February 1988. See id. at 44,955. Under the 1988 interpretative change, HHS reinstated credit to all facilities denied credit between 1980 and 1988 for failing to give timely determinations. Id. at 44,956. This change resulted in reinstating a total of $31 million to facilities nationwide. Plaintiffs’ Cross-Motion, SOF, at para. 26 (Exhibit M). Plaintiffs argue that reinstating credit retroactively imposes an illegal rule and that by reinstating credit, HHS is illegally reducing facilities’ uncompensated care obligations by allowing facilities to fulfill those obligations in violation of the statutory assurance to expand the availability of uncompensated care. Plaintiffs’ Cross-Motion, at 18. Interpretative rules are not subject to the notice and comment requirements specified in the Administrative Procedure Act (“APA”). 5 U.S.C. § 553(b)(A); Batterton v. Marshall, 648 F.2d 694 (D.C.Cir. 1980). Interpretative rules “merely clarify or explain existing law or regulations.” Powderly v. Schweiker, 704 F.2d 1092, 1098 (9th Cir.1983). They describe an agency’s view of the meaning of an existing statutory or regulatory term. Southern Cal. Edison Co. v. F.E.R.C., 770 F.2d 779, 783 (9th Cir.1985); Batterton, 648 F.2d at 705. Interpretative rules, by definition, do not have the force of law. See Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). They are not binding on the agency, private parties, or the courts: Thus an interpretative rule does not have the force of law and is not binding on anyone, including the courts, though the status conferred on an agency as the delegate of Congress and by its expertise often leads courts to defer to the agency’s interpretation of its governing statute. National Latino Media Coalition v. F.C.C., 816 F.2d 785, 788 (D.C.Cir.1987) (citation omitted); Joseph v. United States Civil Service Commission, 554 F.2d 1140, 1154 n. 26 (D.C.Cir.1977) (“Interpretative rules do not have the force of law and even though courts often defer to an agency’s interpretative rule they are always free to choose otherwise. A court should not inadvertently grant an agency rule the binding effect of a legislative rule simply for the purpose of avoiding an exemption from the notice and comment procedures of section 553.”). Although it was not adequately briefed by the parties, there is some question as to what degree of deference should be accorded to interpretative rules. Since interpretative rules are not binding on anyone, it would seem that applying the deference specified in Chevron would require the court to accept the interpretative rules absent a showing of unreasonableness. Under this approach, interpretative rules would become virtually indistinguishable from legislative rules. Yet, note that if the Chevron deference standard is applied, HHS, as a practical matter, would be able to bind the court and the public with rules that do not bind the agency itself and that are exempt from the notice and comment procedures required by the APA. See 5 U.S.C. § 553; Community Nutrition Institute v. Young, 818 F.2d 943, 953 (D.C.Cir.1987) (Starr, J., concurring in part and dissenting in part). Absent a clear indication from Congress or the Supreme Court, the court is unwilling to apply the Chevron deference standard to the subject interpretative rules. This court’s unwillingness to apply the Chevron deference standard is supported by Supreme Court precedent. For example, in Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977), the Supreme Court stated: [A] court is not required to give effect to an interpretative regulation. Varying degrees of deference are accorded to administrative interpretations, based on such factors as the timing and consistency of the agency’s position, and the nature of its expertise. See ... Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164 89 L.Ed. 124 (1944). 432 U.S. at 425 n. 9, 97 S.Ct. at 2405-06 n. 9; see also General Motors Corp. v. Ruckelshaus, 724 F.2d 979, 984-85 n. 30 (D.C.Cir.1983) (“A court always has the power to substitute its judgment for that of the agency in the case of an interpretative rule, even though courts customarily accord some measure of deference to an agency’s interpretation of a statute for which it has been assigned the responsibility of enforcement.”), aff'd in part on rehearing, 742 F.2d 1561 (1984), cert. denied, 471 U.S. 1074, 105 S.Ct. 2153, 85 L.Ed.2d 509 (1985); Joseph, 554 F.2d at 1154 n. 26 (same). Since interpretative rules are not binding on anyone, they, unlike legislative rules, should not be given controlling significance. In other words, when legislative rules are not involved, “administrative interpretations of statutory terms are given important but not controlling significance.” Batterton v. Francis, 432 U.S. at 424, 97 S.Ct. at 2405. The deference given in this situation was expressed by the Supreme Court in Skidmore, supra, where the Court stated: [Wjhile not controlling upon the courts ... [agency interpretations] constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control. 323 U.S. at 140, 65 S.Ct. at 164; accord General Elec. Co. v. Gilbert, 429 U.S. 125, 141-42, 97 S.Ct. 401, 411, 50 L.Ed.2d 343 (1976). The court is persuaded that the 1988 interpretative rules as they relate to the reinstatement of credit are inconsistent with HHS’ past interpretations. HHS' consideration of the interpretative rules appears to be less than thorough and the validity of its reasoning is questionable. As support for the reasoning underlying the reinstatement rule, HHS asserts the substantial compliance regulations and a district court decision from the District of Minnesota. Contrary to HHS’ assertion, the 1987 regulations have not “rendered moot for most purposes the two-working-day requirement. The two-day eligibility determination period is still a factor to be considered in determining whether to grant or deny credit. The substantial compliance scheme does not alter a facility’s obligation to make timely determinations. See 42 C.F.R. § 124.507(c)(1990). It has merely been deemphasized insofar as a two-day determination is no longer required in a situation where a patient is discharged before making a request for uncompensated services, and failure to comply with this provision will no longer result in the automatic denial of credit. Deemphasizing the significance of the two-day provision is an insufficient basis for reinstating credit. A rule that, in effect, denies indigent people $31 million in medical care serves no purpose other than to frustrate congressional intent which is, as noted earlier, to provide medical services to indigent people. American Hosp. Ass’n v. Schweiker, 721 F.2d at 176-77. Further, HHS’ reliance on Douglas County is misplaced because, as noted earlier, that case is limited to a situation where a facility has a valid reason to seek a brief delay. Douglas County had nothing to do with whether credit should be reinstated to all facilities, no matter what the length of time or the reason for the delay. Moreover, Douglas County was reviewing a regulation under a higher standard of deference than the instant interpretative rule. In short, the 1988 interpretative rule insofar as it relates to the reinstatement of credit does not fare well under the Skid-more standard of deference. The interpretative rule is inconsistent with legislative intent underlying Hill-Burton and prior Hill-Burton interpretations. The reasoning advanced by HHS demonstrates that its consideration of the interpretative rules was less than thorough. IV. Administrative Procedure Act Plaintiffs claim the 1987 and 1988 changes violate the APA on two grounds. First, they argue that because the changes conflict with due process standards, HHS has violated the APA. Second, plaintiffs argue that HHS violated the APA by failing to proceed by rulemaking when promulgating the 1988 “interpretative change” which revoked retroactively the 1979 two-day rule. A. Due Process To assert a due process claim, plaintiffs must demonstrate a protectible property interest. See Board of Regents v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972). “[Property interests] are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Id. at 577, 92 S.Ct. at 2709; Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985). Federal constitutional law determines whether the interest asserted rises to the level of a legitimate claim of entitlement protected by the due process clause. Loehr v. Ventura County Community College Disk, 743 F.2d 1310, 1314 (9th Cir.1984). Under Hill-Burton, a patient who meets objective financial criteria is eligible for uncompensated medical care. A patient’s right to receive services is contingent upon whether the hospital has met its annual uncompensated services obligation, 42 C.F.R. § 124.503(a) (1990), as well as the particular hospital’s allocation plan and whether the applicant has other medical coverage. See 42 C.F.R. § 124.505(a)(1) & 124.506 (1990). In Newsom v. Vanderbilt University, 653 F.2d 1100 (6th Cir.1981), the Sixth Circuit concluded that Hill-Burton “did not require any particular allocation scheme nor is there any legislative history to indicate that Congress thought the Hill-Burton recipients would be providing free care for all that needed it.” Id. at 1120. The court went on to find that given that the need for indigent care was greater than the resources of the hospital, “no individual has a legitimate claim to free services such that the procedures provided in the present ease infringe a due process right.” Id. at 1121. In contrast, the Seventh Circuit, in Davis, supra, held that indigent patients have due process rights with regard to Hill-Burton eligibility determinations. “This enforceable interest comports with the practical side of due process since it is conditional upon controverted or controvertible facts.” Davis, 640 F.2d at 43. Unlike Newsom, the Davis court held that Hill-Burton applicants need not have actual entitlements to Hill-Burton services to have due process rights in the procedures surrounding eligibility determinations. Id.; see also Ressler v. Pierce, 692 F.2d 1212, 1214-17 (9th Cir.1982) (applicants for federally subsidized housing had due process rights in waiting list procedure). In finding that Hill-Burton applicants have an enforceable interest in compliance by facilities, the Davis court stated: [T]he regulations appear to anticipate that granting an application will be the usual course, perhaps because the eusL tomary level of compliance is set high enough to ensure that most applicants will receive services. Accordingly, claimants will ordinarily have to demonstrate only their eligibility; in the uncommon case, the facility may perhaps seek thereafter to show exhaustion of its yearly compliance requirement or financial strain. 640 F.2d at 42-43 (footnote omitted). HHS criticizes the Davis decision, stating that it “is based on the faulty assumption that the granting of an application for Hill-Burton uncompensated services will be the ‘usual course, perhaps because the customary level of compliance is set high enough to ensure that most applicants will receive services.’ ” HHS’ Motion as to First Amended Complaint, at 15 (quoting Davis, 640 F.2d at 42-43). Citing Newsom, HHS argues that the “legislative history of the Hill-Burton Act indicates that Congress recognized that the need for free services was greater than the provisions the Act created.” Id. As support for their argument, HHS points out that Flagstaff Medical Center satisfied its entire multi-year obligation in only seven weeks. HHS’ Motion as to First Amended Complaint, Exhibit 1 at 2. While the isolated example of FMC is persuasive, the court nevertheless is convinced that the rate at which a hospital fulfills its Hill-Burton obligation is separate from whether plaintiffs have an enforceable due process interest in receiving uncompensated care. Since the regulations allow a hospital to develop its own allocation plan, see 42 C.F.R. § 124.506 (1990), thereby determining the rate at which it fulfills its Hill-Burton obligation, it makes little sense to tie a h