dissenting.
I respectfully dissent.
I would reverse the district court’s order holding that the Sole Community Hospital Regulation, 42 C.F.R. § 412.92, is valid. I would hold that it is invalid, and direct the Secretary to grant Samaritan Hospital sole community hospital designation effective January 10, 1990.
In the final analysis, this case is about a half mile. The essence of the Secretary’s decision is that although it met all of the other criteria in the regulation, the Samaritan Hospital was 24.5 miles from the Moberly Hospital, thus failing to meet the 25-mile requirement, and accordingly, must be denied sole community hospital status. I believe that our court errs when it holds that the regulation adopted by the Secretary was consistent with the plain language of the authorizing statute. The Secretary failed to provide a reasoned analysis for the change in the regulatory scheme and failed to consider significant evidence in denying the sole community hospital status.
The court today adopts an unduly restrictive construction of the statute. The statute, which contains a general definition to determine whether a hospital is a sole source of hospital services reasonably available to individuals in a geographic area entitled to the benefits, has a much broader reach. My disagreement with the court commences with the astringency of its grammatical and semantic approach to the statutory language. First, I cannot agree that the phrase “as determined by the Secretary” modifies only the phrase “other like hospitals or other hospitals” and not the entire phrase “factors such as” with its enumerated examples. Nothing in the punctuation or word order suggests such a narrow reading. Secondly, I differ with the court’s reading “such as” essentially as words of limitation. The court reads too narrowly our earlier decision in Donovan v. Anheuser Busch, Inc., 666 F.2d 315, 327 (8th Cir.1981), authored by the late District Judge William H. Becker, which concludes that the “such as” phrase “does not constitute words of limitation restricting the definition ..., but is an example or illustration .... The phrase ‘such as’ ... indicates] that there are includable other matters of the *770same kind which are not specifically enumerated by the standard.” (Emphasis added). See St. Paul Fire & Marine Ins. Co. v. Helena Marine Serv., Inc., 884 F.2d 391, 394 (8th Cir.1989) (Hansen, J.), cert. denied, 494 U.S. 1004, 110 S.Ct. 1298, 108 L.Ed.2d 475 (1990). Donovan underscores that the phrase “such as” is not a phrase of strict limitation. The court’s opinion recognizes some of this language from Donovan, but turns it on its head to make this a phrase of limitation. I would read, consistent with Donovan, the phrase “such as” to include not only the four specifically enumerated factors, but other considerations that would bear upon whether services are “reasonably available” to individuals in the geographic area. Under this more logical interpretation, the statute on its face requires consideration of not only the four enumerated factors, but also other aspects relating to reasonable availability such as physician admitting patterns and resident use of the various facilities. These additional considerations were factors the Secretary considered in determining sole community hospital status under earlier regulations which had been adopted without statutory definition.
As I conclude that the court’s reading of the plain meaning of the statute is too narrow, it follows that I believe the Secretary’s regulation improperly excluded all factors other than pure distance when it adopted the bright line 25-mile rule. A bright line 25-mile rule that does not allow consideration of factors such as physician admitting practices when a hospital is 24.5 miles from the next hospital providing similar services, but does so when the distance is 25 to 50 miles, most convincingly establishes that it is an arbitrary and capricious determination.
Further, I am convinced that the Secretary’s adoption of a rule differing substantially from its earlier definition of sole community hospital was defective because there was not a sufficient reasoned analysis for the change. I cannot accept the argument the court makes today that the statutory definition relieves the Secretary from this responsibility under Motor Vehicle Mfrs. Ass’n v. State Farm, Mut. Auto. Ins. Co., 463 U.S. 29, 57, 103 S.Ct. 2856, 2874, 77 L.Ed.2d 443 (1983). To the contrary, the addition of the statutory definition of sole community hospital and the four specified factors makes even more necessary an explanation of the significant change in standards. I find it particularly significant that the statute’s legislative history clearly shows the desirability of a consideration of a broad range of factors relating to beneficiary access. The Senate Finance Committee Report stated:
Therefore, the Committee expects that the Secretary, in making such determinations for sole community providers under the new prospective payment system, will develop and take into account a much broader range of factors relating to beneficiary access to basic hospital services.
Sen.Rep. No. 23, 98th Cong., 1st Sess. 54, reprinted in 1983 U.S.C.C.A.N. 143, 194.
Finally, the record convinces me that the regulation is invalid because the Secretary failed to consider important evidence before promulgating the regulation. As Samaritan points out, the Secretary’s reliance on the Prospective Payment Assessment Commission’s Report as support for the 25-mile restriction is misleading. That report included data from all hospitals, rural and non-rural. Further, the Secretary ignored the fact that most hospitals that are within 25 miles of other hospitals are within the same community and meet none of the sole community hospital status factors.
The Samaritan Hospital met all of the requirements in the regulation, 42 C.F.R. § 412.92, with the single exception that it was only 24.5 miles rather than 25 miles from the nearest hospital. The regulation permitting this result was contrary to the plain language of the statute, and any question about it is set to rest by the legislative history. The direct result was an arbitrary and capricious determination by the Secretary.
I have been particularly persuaded by the reasoning in Central Oregon Hosp. Dist. v. Sullivan, 757 F.Supp. 1134, 1145 (D.Or.1991), holding that the regulation was promulgated arbitrarily and capriciously because it failed to consider factors in addition to distance, topography, and weather in determining sole community hospital status for hospitals less than 25 miles from the nearest hospital. *771This case carefully discusses similar issues and clearly details the regulatory and legislative background of this issue.
I would reverse.