specially concurring.
I join in the Court’s opinion. However, I write separately because Gem State’s challenge to the regulation limiting recovery of attorney fees merits closer examination. First, I will address Gem State’s argument that the regulation conflicts with the federal Medicaid scheme. Second, I will discuss the standards governing the equal protection issue.
I
As the lead opinion correctly notes, Medicaid is a cooperative undertaking by the federal government and the states. In order to qualify for federal funding, a state must submit a plan to the U.S. Department of Health and Human Services (HHS). The plan will be approved if it satisfies criteria set forth in 42 U.S.C. § 1896a. The statute does not prescribe in detail the costs for which a health care provider may obtain reimbursement. Neither does it specify the rate of such reimbursement. Rather, it lays out broad contours for state plans. Within the limits of the statute, and of interpretive regulations promulgated by HHS, each state is encouraged to develop its own reimbursement scheme. Mississippi Hospital Ass’n v. Heckler, 701 F.2d 511 (5th Cir.1983); Thomas v. Johnston, 557 F.Supp. 879 (W.D.Tex.1983). “Congress, in passing the Medicaid statute, specifically contemplated allowing states wide discretion in implementing the program.” Troutman v. Cohen, 588 F.Supp. 590, 592 (E.D.Pa.1984), aff’d without opinion, 755 F.2d 924 (3d Cir.1984). Consequently, judicial review is limited to determining whether (1) the state plan is in compliance with federal law, and (2) the state regulation under challenge has a rational basis. As the Fifth Circuit has explained, “our role does not extend to reweighing or rethinking the political and financial concerns behind a particular payment plan.” Mississippi Hospital Ass’n v. Heckler, 701 F.2d at 516.
Gem State argues that the Idaho regulation, which allows attorney fees in administrative appeals only to the extent that the provider ultimately prevails, is inconsistent with federal law. However, neither the statute nor any federal regulation specifies whether and to what extent the states are required to reimburse such fees. The statute simply provides that a state must reimburse expenses “which the State finds, and makes assurances satisfactory to [HHS], are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities----” 42 U.S.C. § 1396(a)(13). Here, Idaho has determined, and HHS presumably has agreed,1 that attorney fees expended in un*30successfully challenging audit disallowances of health care reimbursement claims are not “costs which must be incurred by efficiently and economically operated facilities.” Those courts which have considered the attorney fee issue have concluded that the federal scheme does not require all, or any, attorney fees to be allowed. See Mississippi Hospital Ass’n v. Heckler, supra; Country Club Home, Inc. v. Harder, 228 Kan. 756, 620 P.2d 1140 (1980), modified, 228 Kan. 802, 623 P.2d 505 (1981); State ex rel. Living Services, Inc. v. Thompson, 95 Wash.2d 753, 630 P.2d 925 (1981) (en banc). Cf. Haven Home, Inc. v. Dep’t. of Public Welfare, 216 Neb. 731, 346 N.W.2d 225 (1984) (state not required to reimburse provider for every allowable cost). Accordingly, I am constrained to agree with my colleagues that the Idaho regulation does not conflict with federal law. In addition, even though I believe the regulation has a significant chilling effect upon good faith challenges to audit disallowances, I cannot say that it lacks a rational basis.
II
I now turn to the equal protection issue. The regulation under review creates two classifications. First, it differentiates between providers who seek attorney fees and those who seek recovery of other types of expenses, incurred while challenging audit disallowances. The second classification distinguishes between providers who prevail on their challenges and those who do not.
The courts have employed a three-tiered methodology in reviewing statutes or regulations alleged to violate equal protection. Laws that create “suspect” classifications based on race or alienage, or which deprive persons of fundamental rights, are subjected to “strict scrutiny.” Traditionally, all other laws have been subjected to a more deferential “rational basis” test. However, the United States Supreme Court recently has applied a third, “intermediate” standard of review to cases involving especially important, though not necessarily “fundamental,” interests, and to cases where unusually sensitive, although not necessarily “suspect,” classes have been created. See discussion in State v. Reed, 107 Idaho 162, 170, 686 P.2d 842, 850 (Ct.App.1984). Among the classifications triggering intermediate scrutiny are those based on gender. See generally L. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 16-24 to 16-28 (1978). It is of more than historical interest that the benchmark case on gender classification, Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), struck down an Idaho statute. In 1976, the Idaho Supreme Court interpreted that case and other U.S. Supreme Court decisions to create an intermediate standard applicable to “invidiously discriminatory classifications.” Jones v. State Board of Medicine, 97 Idaho 859, 867, 555 P.2d 399, 407 (1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977). See also Tarbox v. Tax Commission of Idaho, 107 Idaho 957, 960, 695 P.2d 342, 345 (1985) (stating that the intermediate standard applies to “blatantly discriminatory” schemes). A law will survive judicial review under the intermediate standard only if it “substantially furthers some specifically identifiable legislative end.” Jones, 97 Idaho at 867, 555 P.2d at 402.
As we noted in State v. Reed, supra, the Idaho Supreme Court has not yet authoritatively delineated what it means by “blatant” or “invidious” discrimination. Nor is it clear how far the application of Idaho’s intermediate standard extends beyond the scope of cases in which a federal intermediate standard has been employed. See State v. Breed, 111 Idaho 497, 725 P.2d 202 (Ct.App.1986). Nevertheless, I am satisfied that today’s case does not fall within the ambit of any intermediate standard. The classifications here do not appear calculated to benefit one clearly identifiable group of persons at another group’s ex*31pense. To the contrary, it is likely that a health care provider will in some instances be favored by the classifications at issue here, in other instances be disfavored, and in yet others be favored in part and disfavored in part. These circumstances do not suggest a “clearly evinced legislative purpose to discriminate.” Breed, 111 Idaho at 501, 725 P.2d at 206, Thus, the lead opinion today correctly applies the rational basis test rather than an intermediate standard.
However, the classifications are “under-inclusive.” That is, they confer a benefit or impose a burden upon some persons in a manner which furthers a legitimate public purpose, but do not confer the same benefit or impose the same burden on all persons similarly situated. See State v. Cantrell, 94 Idaho 653, 496 P.2d 276 (1972). The United States Supreme Court has upheld underinclusive statutes on the theory that a legislature or agency need not address all perceived evils at the same time or in the same way. Rather, it may implement a program step by step, adopting measures that partially ameliorate an evil while deferring a complete solution to the future. E.g. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981); Williamson v. Lee Optical, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). Here, the evil perceived by drafters of the Idaho Medicaid plan appears to be the impact of administrative appeals, with their attendant costs, upon the finite resources available for health care. The drafters’ response has been to reduce one category of expense, attorney fees, and to discourage some appeals from being filed, by limiting recovery of fees. Although the wisdom of this scheme is debatable, I believe its classifications are constitutionally permissible despite their underinclusiveness.
This does not mean that I agree with the broad statement in the lead opinion, that an underinclusive classification “does not constitute an equal protection problem.” Underinclusive schemes may be, and have been, struck down. See Califano v. Westcott, 443 U.S. 76, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979) (“Congress may not legislate ‘one step at a time’ when that step is drawn along the line of gender____”); O’Brien v. Skinner, 414 U.S. 524, 94 S.Ct. 740, 38 L.Ed.2d 702 (1974) (invalidating absentee voting statute which did not extend to jailed persons). However, these cases involved the fundamental right to vote and a gender-based classification. In contrast, the Lee Optical and Clover Leaf Creamery cases involved business regulations subject to the rational basis test. They are more akin to the case before us. Where the equal protection issue is confined to a rational basis inquiry, greater deference to underinclusive classifications is justified. With this qualification, I concur in the lead opinion’s refusal to invalidate the attorney fee regulation.
. The attorney fee regulation was adopted after Idaho’s plan was initially approved. Federal regulations provide for the prompt submission to HHS, and prompt review by the agency, of amendments to state plans. See 45 C.F.R. § 201.3. If an amendment is not submitted to HHS for review, and the change conflicts with federal law, federal funds will be withheld. 45 *30C.F.R. § 201.6. Further, an amendment to a state plan cannot be enforced until HHS approval has been obtained. Washington State Health Facilities Ass’n v. Washington Dept. of Social and Health Services, 698 F.2d 964 (9th Cir.1982). In this case, the regulation regarding attorney fees has been in effect since 1982. Absent a contrary indication in the record, I must presume that Idaho submitted its plan amendment to HHS and that the agency approved it.