Davis v. Shah

Plaintiffs-appellees. Harry Davis, Rita-Marie Geary, Patty Poole, and Roberta Wallach (“plaintiffs”) brought this class, action against defendant-appellant Nirav Shah, Commissioner of the New York State Department of Health (the “Commissioner”), challenging New York’s coverage restrictions on certain medical services provided under its Medicaid plan. .Plaintiffs argue that New York’s 2011 plan amendments, which restrict coverage of orthopedic footwear and • compression stockings to patients with certain enumerated medical conditions, violate the Medicaid Act’s reasonable, standards,, home health services, due process, and comparability provisions,- as well as., the anti-discrimination provision and integration mandate of Title II of -the Americans with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act. The United States District Court for the-Western District of New York (Charles J. Siragusa, Judge) granted summary judgment to defendant on plaintiffs’ home, health- services claim and the hearing aspect of their due process claim, and granted summary judgment to plaintiffs on all their remaining claims. The court subsequently entered a permanent injunction barring New York from enforcing its coverage restrictions against any beneficiaries under its plan.

We affirm in part and vacate in part. Because neither the Medicaid Act nor the Supremacy Clause confers a private cause of action to enforce the reasonable standards provision, we vacate the district court’s grant of summary judgment to plaintiffs on that claim. We , also decline to reach plaintiffs’ unequal treatment claim under the ADA and Rehabilitation Act as largely duplicative of their integration mandate claim. With respect to the remaining claims, however, we affirm the summary judgment rulings of the district court. Because orthopedic, footwear *238and compression stockings constitute optional “prosthetics” rather than mandatory “home health services” under the Medicaid Act, defendant is entitled to summary judgment on plaintiffs’ home health services claim.' Because the due process provision required New York to provide plaintiffs with written notice — though not evidentiary' hearings — prior to terminating their . benefits, ■ defendant is entitled to summary judgment on the hearing element and plaintiffs are entitled to summary judgment on the notice element of plaintiffs’ due process claim. Because New York’s coverage restrictions deny some categorically needy individuals access to the same scope of medically necessary services made available to others, plaintiffs- are entitled to summary judgment on their comparability provision claim. Because New York’s restrictions violate the integration mandate of the ADA and Rehabilitation Act, plaintiffs are entitled to summary judgment' on their antidiscrimination claims .under those statutes. '

Finally, because the injunction granted by the district court is broader than is' warranted by our liability conclusions, we vacate that injunction and remand for further consideration of the appropriate relief.

BACKGROUND

I. The Federal Medicaid Program

Enacted in 1965 as Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., the Medicaid Act is a cooperative federal-state program designed tó provide medical assistance to persons whose resources are insufficient to meet the cost's of their necessary medical care. Himes v. Shalala, 999 F.2d 684, 686 (2d Cir.1993). On the federal level, the program is administered by the Centers for Medicare and Medicaid Services (“CMS”), a division of the United States Department of Health and Human Services (“HHS”). Although no state is required to participate in Medicaid, states that choose to do so must formulate a plan of administration that complies with both the Medicaid Act and regulations promulgated by HHS. 42 U.S.C. § 1396a; Lewis v. Thompson, 252 F.3d 567, 569 (2d Cir.2001). Once CMS approves the state plan as complying with all statutory and regulatory requirements, the federal government will subsidize a significant portion of the state’s expenditures in administering the program. 42 U.S.C. §§ 1396a(b), 1396b; Rodriguez v. City of New York, 197 F.3d 611, 613 (2d Cir.1999).

A state’s Medicaid plan defines both the categories of individuals eligible for benefits arid the categories ,of services that are covered for those different groups. See 42 U.S.C.. § 1396a(a); Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 650, 123 S.Ct. 1855, 155 L.Ed.2d 889 (2003). With regard to beneficiaries, the Medicaid Act requires any state participating in Medicaid to provide medical assistance to the “categorically needy.” Roach v. Morse, 440 F.3d 53, 59 (2d Cir.2006). That group includes aged, blind, or disabled individuals who qualify for supplemental security income; individuals eligible for the Aid to Families with Dependent Children program; and other low-iricome groups, such as pregnant women and children, entitled to poyerty-related benefits. See 42 U.S.C. § 1396a(a)(10)(A)(i); Walsh, 538 U.S. at 651 n. 4, 123 S.Ct. 1855. A state may. also, at its option, provide medical assistance to the “medically needy.” Roach, 440 F.3d at 59. That group includes individuals whose income or resources exceed the financial threshold for categorical coverage, but who otherwise meet the eligibility requirements that define the categorically needy. See 42 *239U.S.C. § 1396a(a)(10)(C); 42 C.F.R. § 435.301; Walsh, 538 U.S. at 651 n. 5, 123 S.Ct. 1855. Unlike the categorically needy, who can cover the costs of neither their basic needs nor necessary medical care, the “medically needy” have sufficient resources to cover their basic needs but not their necessary medical care. Roach, 440 F.3d at 59.

With regard to services provided under a state plan, the Medicaid Act similarly specifies certain categories of mandatory and optional medical care. 42 U.S.C. § 1396a(a)(10)(A); id. § 1396d(a); Rodriguez, 197 F.3d at 613. A state is required to provide some benefits to all categorically needy individuals, including, among others, nursing facility services for persons over 21 and “home health care services.” 42 U.S.C. § 1396a(a)(10)(A); id. §§ 1396d(a)(4), (7). While a state need not provide either service to the medically needy, any state that elects to- provide nursing facilities services to those beneficiaries must also provide home health services. Id. § 1396a(a)(10)(D); 42 C.F.R. § 440.220(a)(3). Furthermore, the. Medic-, aid Act identifies a number of purely optional services that a state may provide to either the categorically needy or to both the categorically and medically needy. Optional services include, among other things, “prosthetic devices.” 42 U.S.C. § 1396a(a)(10)(A); id. § 1396d(a)(12); see also 42 C.F.R. 440.120(c); id. § 440.225.

The Medicaid Act imposes several requirements on the administration of both required and optional services under a state plan.- Under the so-called “reasonable standards” provision, the Act provides that a participating state must “include reasonable standards ... for determining eligibility for and the extent of medical assistance under the plan which ... are consistent with the objectives” of the Medicaid program. 42 U.S.C. § 1396a(a)(17). Under the so-called “comparability” provision, the Act requires that- the medical assistance available - to any categorically needy individual “shall not be less' in amount, duration; or scope than the medical assistance made available to any other such individual,” nor “less in amount, duration, or scope than the- medical assistance made available to [non-categorically needy] individuals.” 42 U.S.C. § 1396a(a)(10)(B); see also 42 C.F.R. § 440.240; Rodriguez, 197 F.3d at 615. Finally, under the due process provision, a state plan participating in Medicaid must “provide for granting an opportunity for a fair hearing .before the State agency to any individual whose claim for medical assistance under the plan is denied.” 42 U.S.C. § 1396a(a)(3). That requirement entails both written notice of any intended actions affecting a .beneficiary’s .claim and an evidentiary hearing to contest, denials of service. See 42 C.F.R. §§ 431.206(b), (c); id. § 431.210.

II. :New York’s 2011 Medicaid Aménd- ■ ■ ments >■ ■

The State of New York has participated in the federal Medicaid program since 1966. See N.Y. Soc. Serv. Law § 363; DeJesus v. Perales, 770 F.2d 316, 319 (2d Cir.1985). The terms of New York’s Medicaid plan, which is administered by the New York State Department of Health (“NYSDH”), are set out in the New York Social Services Law, see N.Y. Soc. Serv. Law § 363 et seq., and Title 18 of the New York Codes, Rules and Regulations, see 18 N.Y.C.R.R. § 500 et seq.

New York has chosen to provide Medicaid coverage to both the categorically needy and the medically needy. See N.Y. Soc. Serv. Law § 366; Lewis, 252 F.3d at 570. Standard coverage for both types of beneficiaries under its plan is defined as the provision of '

*240medically necessary medical, dental and remedial care, services, and supplies ... which are necessary to • prevent, diagnose, correct or cure conditions in the person that cause acute. suffering, endanger life, result in illness-or infirmity, interfere with such person’s capacjty for normal activity, or threaten some significant handicap....

N.Y. Soc. Serv. Law § 365-a(2). Such standard medical assistance includes both nursing facility services and “home health services provided in a recipient’s home.” Id. §§ 365-a(2)(b), (d). It also includes coverage of “sickroom supplies, eyeglasses, prosthetic appliances and dental prosthetic appliances.” Id. §. 365-a(2)(g).

Until 2011, New York’s Medicaid program provided orthopedic footwear and compression stockings to all beneficiaries for whom such services were medically necessary. During that time, regulations promulgated by the NYSDH defined “orthopedic footwear” as

shoes, shoe modifications, or shoe additions which are used to correct, accommodate or prevent a physical deformity or range of motion malfunction in a diseased or injured part of the ankle or foot; to support a weak or deformed structure of the ankle or foot, or to form an integral part of a brace.

18 N.Y.C.R.R. § 505.5(a)(4) (effective until Apr. 6, 2011). Although the regulations did not define “compression stockings,” the acting director of operations at NYSDH’s Office of Health Insurance Programs has described such items as hosiery that exerts pressure against the legs so as to “comfort aching and tired legs,” “prevent varicose veins from stretching and hurting,” “improve blood and lymph circulation,” and minimize swelling.1 Joint App’x at 353.

In 2011, New York found itself facing a state-wide fiscal crisis. In searching for ways to reduce its budget, New- York discovered that orthopedic footwear and compression stocking were a source of significant waste in its Medicaid program. In the fiscal year for 2010-2011, nearly half of state Medicaid payments for orthopedic footwear went to the treatment of hammertoes and bunions, . common medical conditions -that can readily be treated through inexpensive off-the-shelf products. Similarly, numerous beneficiaries submitting claims for compression stockings had used such items to treat common and relatively mild complaints, such as varicose veins or aching legs..

To reduce spending, New York amended its Medicaid plan to limit coverage for both orthopedic footwear and compression stockings to what it deemed to be the most frequently occurring serious conditions requiring their use. In the spring of 2011, the New York legislature added a set of qualifications to N.Y. Soc. Serv. Law § 365-a(2)(g), which addresses New York’s provision of “sickroom supplies, eyeglasses, prosthetic appliances and dental prosthetic-appliances.” The revised version of that provision now provided that

(iii) prescription footwear and inserts are limited to coverage only when used as an integral part of a lower limb or-thotic appliance, as part of a diabetic treatment plan, or to address growth and development problems in children; [and]

*241(iv) compression and support stockings are limited to coverage only for pregr nancy or treatment of venous stasis ulcers ....

N.Y. Soc. Serv. Law §§ 365-a(2)(g)(iii),;(iv) (effective Apr. 1,2011).

To reflect the legislature’s changes, NYSDH also amended the definitions section at 18 N.Y.C.R.R; § 505.5(a) and added a new limiting provision at § 605.5(g). The regulatory definition of “orthopedic footwear” now described such items' ás

shoes,- shoe modifications, or shoe additions which are used ... in the treatment of children, to correct, accommodate or prevent a physical deformity or range of motion malfunction in a diseased or injured part of the ankle,.or foot; in the treatment of children, to support a weak or deformed structure of the ankle or foot; as a component of a comprehensive diabetic treatment plan to treat amputation, ulceration, pre-ul-eerative calluses, peripheral neuropathy with evidence of callus formation, a foot deformity or poor circulation; or to form an integral part of an orthotic brace.

18 N.Y.C.R.R. § 505.5(a)(4) (effective Apr. 6, 2011) (emphases added). The new subsection at § 505.5(g) listed several “established defined benefit limits” on Medicaid services, including limitations on orthopedic footwear and compression stockings that tracked the language of the legislature’s new qualifications at § 365-a(2)(g). See id. §§ 505.5(g)(1), (2).2 The limitations provision warned that NYSDH “shall not allow exceptions, to- defined benefit limitations.” Id. § 505.5(g).

■. Prior to ■ .implementing its changes, NYSDH submitted a proposed plan amendment; for review .by CMS, noting the new restrictions on New York’s coverage of orthopedic footwear and. compression stockings. CMS. informally advised the department that it need not obtain CMS’s approval for the new coverage restrictions because, as paraphrased by NYSDH, “such changes in medical necessity criteria were .within the State’s purview.” Joint App’x at 360. . The record contains no written statement from CMS embodying this advice. The advice is.evidenced only by an affidavit from' Jonathan Bick, the acting director of operations at New York’s Office of Health Insurance Programs, attesting to whát he was told by CMS. ' -;

NYSDH' subsequently adopted - its new regulations on an emergency basis effective April 6, 2011, and as a permanent rule effective March 28, 2012. It communicated the new changes in service to medical suppliers by issuing a series of “Provider Update[s] for Pharmacy and DME Providers.” ■ JA162. ’ It -did hót notify individual beneficiaries of the changes.

By restricting coverage for orthopedic footwear and compression stockings, New York saved $14.6 million during the 2011-2012 fiscal year.

III. The Plaintiffs

Plaintiffs include both categorically needy and medically needy individuals who *242qualify for New York’s Medicaid plan on the basis of their disabilities. They suffer from a variety of ailments, including multiple sclerosis, paraplegia, lymphedema, cel-lulitis, psoriatic arthritis, peripheral neuro-pathy, and trans-metatarsal amputation. Plaintiffs’- doctors have prescribed them orthopedic footwear or compression stockings as medically necessary items1 to treat their afflictions. Such products help plaintiffs to maintain mobility and to avoid more serious complications, including skin ruptures, infections, and further amputations, which may require extended hospital care or even institutionalization. The Commissioner does not dispute that orthopedic footwear or compression' stockings are in fact medically necessary, to treat plaintiffs’ conditions.

Prior to New York’s 2011 amendments, most plaintiffs had received Medicaid coverage for their orthopedic footwear or compression stockings.3 Because none, of plaintiffs’ diagnoses fall within New York’s 2011 list of qualifying conditions, however, plaintiffs lost funding for those services in April 2011. They received no written notice- of the new coverage restrictions, but instead learned of New York’s change in service when they attempted to fill or refill their orders and were denied by their medical providers.

IV. Procedural History

On March 14, 2012, plaintiffs commenced this suit , as a putative class action against .the Commissioner in the United States District Court for the Western District of New York. They claimed that New York’s coverage restrictions violated the Medicaid Act’s reasonable standards provision, 42 U.S.C. § 1396a(a)(17), its home health services provision, id. §-1396a(a)(10)(D), its due process provision, id. § 1396a(a)(3), and its comparability provision, id. § 1396a(a)(-10)(B). They also claimed that the amendments discriminated, against them on the basis of disability and put them at risk of institutionalization in violation of Title II of the ADA, 42 U.S.C. § 12131 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. Plaintiffs sought declaratory and injunctive relief prohibiting NYSDH from implementing the service changes, as well as attorneys’ fees and costs and disbursements.

In October 2012, plaintiffs moved for summary judgment on all counts of the complaint, and the Commissioner cross-moved for summary judgment on all. counts. Prior to considering those motions, the district court granted plaintiffs’ motion for class certification. Echoing the broad certification request in plaintiffs’ complaint, the court certified a class 'that encompassed

[a]ll current and future New York State Medicaid recipients for whom Defendant has directly or indirectly failed to provide coverage for medically necessary orthopedic footwear and compression stockings as a result of New York Soc.-Serv. Law § 365-a(2)(g)(iii) and (iv) and regulations and policies promulgated thereto.

Joint App’x at 415.4

On December 9, 2013, the district court issued an order granting in part and denying in part both parties’ motions for summary judgment. Thé district court gránt-*243ed judgment to defendant on plaintiffs’ home health services claim, holding that orthopedic footwear and compression stockings qualified as “prosthetics” rather than “home health servicés,” and consequently were optional services that failed to trigger that provision. With regard to the remaining claims, however, the district court ruled largely in, favor of plaintiffs, judge Siragusa found, that New York’s restrictions violated .the Medicaid Act’s reasonable standards provision by denying coverage of medically necessary services without any consideration of beneficiaries’ medical needs, and violated the comparability provision by discriminating among categorically needy beneficiaries on basis of their medical conditions. While concluding that the due process provision did not entitle plaintiffs to evidentiary hearings prior to the termination of their benefits, the judge held that New York had nevertheless violated that provision by implementing its restrictions without first providing written notice to'individual beneficiaries. Finally, the court held that New York’s plan amendments conflicted with both the ADA and Rehabilitation Act by treating some disabled individuals more favorably than others, and by putting plaintiffs at risk of institutionalization in violation of the integration mandate.-

The district court thus concluded that plaintiffs were entitled to permanent in-junctive relief, and directed the parties to “settle and submit a proposed Order concerning such injunctive relief’ within fourteen days. Sp. App’x at 62.- In light of the court’s decision, NYSDH announced that it would- cease enforcing 'its plan amendments; explaining that it would simply “return to its previous coverage policy” for orthopedic footwear and compression stockings. Joint App’x at 465.- Subsequently,. the district court entered a final order of judgment that, among other things, permanently enjoined NYSDH and its agents from enforcing the coverage restrictions against any beneficiaries under New York’s. Medicaid plan.

DISCUSSION

We review a district court’s order granting summary judgment de novo, resolving all ambiguities and drawing all permissible factual inferences in favor of the non-moving party. Doe ex rel. Doe v. Whelan, 732 F.3d 151, 155 (2d Cir.2013). We may affirm a grant of suirtmary judgment only if the movant establishes that there is no genuine dispute as to any material facts and that the movant is entitled to judgment as a matter of law. Id.; see also Fed.R.Civ.P. 56(a).

We review a district court’s grant of a permanent injunction for abuse of discretion. Shain v. Ellison, 356 F.3d 211, 214 (2d Cir.2004). A district- court abuses its discretion when “(1) its decision rests on an error of law -.:. or a clearly erroneous factual finding, or (2) its decision — though -not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions.” ACORN v. United States, 618 F.3d 125, 133 (2d Cir.2010) (internal quotation marks omitted). To prevail on a motion for a permanent, injunction, a plaintiff must both succeed on the merits and demonstrate the “absence of an adequate remedy at law and irreparable harm if-the relief is not granted.” Roach, 440 F.3d at 56 (internal quotation - marks omitted).- Because the Commissioner does not dispute either that plaintiffs will suffer irreparable harm if NYSDH continues to enforce its coverage restrictions or that plaintiffs, lack an adequate remedy at law, the only issues before us are the merits of plaintiffs’ statutory claims. ■' -

*244I. Reasonable Standards Provision.

First, plaintiffs claim that New York’s coverage restrictions on orthopedic footwear and compression stockings violate the reasonable standards provision of the Medicaid Act by denying beneficiaries access to services on the basis of their diagnoses without regard .to their medical needs.

The Medicaid Act provides that any state participating in the federal program must “include reasonable standards for determining eligibility for and- the extent of medical assistance under the plan which ... are consistent with the objectives of this subchapter.” 42 U.S.C. § 1396a(a)(17). As interpreted by HHS, that provision requires that each service administered by a state “be sufficient in amount, duration, and scope to reasonably achieve its purpose,” 42 C.F.R. § 440.230(b), though a state may place ‘‘appropriate limits” on its' services “based on such criteria as medical necessity or on utilization control procedures,” ■ id. § 440.230(d).

In 42 U.S.C: § 1983, Congress has created a cause of action whereby plaintiffs may sue a-defendant “who, under color -of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws [of the United States].” 42 U.S.C. § 1983; see also Giordano v. City of New York, 274 F.3d 740, 750 (2d Cir.2001). That language on its faee might appear to permit plaintiffs to sue the Commissioner to vindicate their claims-that New York’s 2011 amendments violate the “laws” of the United States insofar as they-are inconsistent with the reasonable standards provisions of 42 U.S.C. § 139.6a(a)(17) and 42 C.F.R, § 440.230(b).

The Supreme Court, however, has interpreted § 1983 to create a cause of action only for violations of federal laws that “manifest ] an unambiguous intent to confer individual rights.” Gonzaga Univ. v. Doe, 536 U.S. 273, 280, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (internal quotation marks omitted). Federal laws that merely set standards on the basis of which states may receive federal funding, for example, but that do not create specific rights for individuals, are not enforceable by a civil action under § 1983. Id. at 283, 122 S.Ct. 2268. Because the Medicaid Act’s reasonable standards provision addresses a state’s general, administrative duties under the Act, rather than defining individual beneficiaries’ entitlements under that program, it does, not appear to contain the type of rights-creating language necessary to confer a private cause of action. See Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. -, -, 135 S.Ct. 1378, 1387, 191 L.Ed.2d 471 (2015). Unsurprisingly, our sister courts of appeals to have considered the issue have thus concluded that the reasonable standards provision creates no such individual right. See Hobbs ex rel. Hobbs v. Zenderman, 579 F.3d 1171, 1182 (10th Cir.2009); Lankford v. Sherman, 451 F.3d 496, 509 (8th Cir.2006); Watson v. Weeks, 436 F.3d 1152, 1162 (9th Cir.2006).

Plaintiffs, for their part, seem to concede that the reasonable standards provision creates no private right of action under § 1983. Instead, plaintiffs argue that the Supremacy Clause of Article VI of the United States Constitution endows them with independent authority to bring-their statutory claim.5

*245This Court has previously held that where a state law conflicts with a federal statute, the Supremacy Clause creates a private cause of action to enforce the federal statute’s superior requirements. In Burgio & Campofelice, Inc. v. New York State Department of Labor, 107 F.3d 1000 (2d Cir.1997), for example, we affirmed that “the Supremacy Clause creates an implied right of action for injunctive relief against state officers who are threatening to violate the federal Constitution or laws.” Id. at 1006 (internal quotation marks omitted); see also Loyal Tire & Auto Ctr., Inc. v. Town of Woodbury, 445 F.3d 136, 149 (2d Cir.2006).

In its recent decision in Armstrong, however, the Supreme Court rejected that interpretation of Article VI. As the Court noted, the “'ample discussion” of the Supremacy Clause during the ratification debates included no mention of endowing individuals with private rights of action against the states — despite the fact that the constitutional creation of such a cause of action would have significantly restricted Congress’s power to establish mechanisms for the enforcement of its own laws. 575 U.S. at -, 135 S.Ct. at 1383. In context, the Court found it “apparent” that the Supremacy Clause simply “creates a rule of decision” by which courts are to resolve conflicts between state and federal laws. Id. But it “is not the source óf any federal rights, and certainly does-not create a cause of action” to enforce federal statutes that do not independently provide for private enforcement. Id. (internal citation and quotation marks omitted).

After concluding that the Supremacy Clause does not create a private right of action, the Supreme Court further determined that the language of the provision of the Medicaid Act at issue in the case, 42 U.S.C. § 1396a(a)(30)(A), at least when “coupled with the express provision of an administrative remedy,” -indicated that Congress intended to foreclose a private equitable remedy for violation of that provision. Armstrong, 135 S.Ct. at 1385. The provision at issue requires that state plans

provide such methods and procedures relating to the utilization of, and the payment for, care and services available undér the plan ... as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that 'payments are consistent with efficiency, economy, and quality of care and are sufficient , to enlist enough provides so that care, and services are available under the plan at least , to the extent that such care and services are available to the general population in the geographic area.

Id., quoting § 1396a(a)(30)(A). The Court concluded that the “broad[ ],” “eomplex[ ],” and “judgment-laden” nature of the provision’s text made it “judicially unadministrable.” Id. Accordingly, the Court held that the provision was not privately enforceable by invoking the federal courts’ equitable powers.:

Plaintiffs’ claim under the reasonable standards provision in this case rests entirely on an implied right of action arising out of the Supremacy Clause. Because the Court’s decision in Armstrong denies the existence of any such right, Armstrong would thus seem to preclude their claim. Moreover, the language of the reasonable standards provision is’similar to 'that of § l396a(a)(30)(A), requirihg that states “include reasonable standards ... for determining eligibility.” 42 U.S.C. § 1396a(a)(17). Indeed, a district court in *246our circuit recently noted that the provision “consists of a broad grant of discretion to the states,” and' that,' “Mike [subsection 30(A), [the reasonable' standards provision] ■ focuses - on programmatic' aspects of the state plan as a whole, rather than on the specific benefits that must be accorded to individuals.” Cruz v. Zucker; 116 F.Supp.3d 334, 347 (S.D.N.Y.2015). “The district court thus held that the reasonable standards provision “is not privately enforceable” under Armstrong.” Id. We agree.

Plaintiffs object, however, that the Commissioner has waived his challenge to their right to enforce the reasonable standards provision — under Armstrong or otherwise — because he did not raise that defense in opposition to plaintiffs’ motion for summary judgment before the district court. It is true that, as a general matter, “a federal appellate court does not consider an issue not passed upon below.” Baker v. Dorfman, 239 F.3d 415, 420 (2d Cir.2000), quoting Singleton v, Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). Yet because “waiver rules are prudential and not jurisdictional,” we may exercise discretion to address an issue not raised properly before the district court. Paese v. Hartford Life & Accident Ins. Co., 449 F.3d 435, 446 (2d Cir.2006). We are most likely to exercise such discretion “(1) where consideration of the. issue is necessary to avoid manifest injustice, or (2) where the issue is purely legal and there is no need for additional fact-finding.” Baker, 239 F.3d at 420 (internal quotation marks omitted). A party’s assertion of a claim earlier in the proceedings, as well as a lack of prejudice to the opposing party, may also weigh in favor of considering new claims. See Stichting Ter Behartiging Van de Belangen Van Oudaandeelhouders In Het Kapitaal Van Saybolt Int’l B.V. v. Schreiber, 407 F.3d 34, 45-46 (2d Cir.2005) (subsequent history omitted).

Although the' Commissioner did not raise his Supremacy Claúse objection in his summary judgment papers before the district court, he included it in his initial answer to plaintiffs’ complaint and in his opposition to plaintiffs’ motion for a preliminary injunction. Indeed, plaintiffs’ extensive briefing on this issue on appeal demonstrates that plaintiffs suffered no unfair surprise or prejudice from defendant’s failure to argue the matter in opposition to summary judgment. ..Furthermore, the. Commissioner’s objection to plaintiffs’ assertion of a cause of action based on the Supremacy Clause raises a discrete question of. law — one recently clarified by and readily resolved in light of the Supreme Court’s decision in Armstrong — that is dispositive of plaintiffs’ reasonable standards claim. Under these circumstances, we find it appropriate to exercise our discretion to resolve the Commissioner’s objection on the merits.

Because Armstrong forecloses plaintiffs’ claim that the Supremacy Clause endows them with an implied right of action to enforce the reasonable standards provision,, defendant is. entitled to summary judgment on plaintiffs’ claim under § 1396a(a)(17).

II. Home Health Services

Second, plaintiffs claim that New York’s coverage restrictions for orthopedic footwear and compression stockings based on a beneficiary’s medical condition violates the Medicaid Act’s home health services provision by denying beneficiaries access to obligatory medical “equipment” or “supplies.” We agree with the district court that this claim is unper*247suasive.6

Under the home health services provision, a state participating in the federal Medicaid program must provide “home health services for any individual who, under the State plan, is entitled to nursing facility , services.” 42 U.S.C. § 1396a(a)(10)(D). The parties do not dispute that New York’s Medicaid plan provides nursing' facilities services to both the categorically needy and 'the medically needy, and that New York is consequently obligated to provide home health services to both groups. • They dispute, however, whether orthopedic footwear or compression stockings qualify as “home health services” so as to trigger that requirement.

As a preliminary matter, the" Commissioner insists that CMS implicitly found that orthopedic footwear and compression stockings qualify as “prosthetics” when it excused New York "from seeking further agency approval of its proposed coverage restrictions — permission CMS could have given only if it deemed New York’s plan amendments consistent with the home health services provision. As a general principle, we owe á “significant measure of deference to CMS’s interpretation” of the Medicaid Act, Cmty. Health Ctr. v. Wilson-Coker, 311 F.3d 132, 137 (2d Cir.2002), including to its “implicit judgment” that “a state plan complies with federal law” in approving that plan, id. at 140, as well as to “relatively 'informal” ‘communications, such as letters from local administrator^ id. at 138. In this case, however, CMS has submitted an amicus brief explicitly disclaiming that its communications with NYSDH reflected any meásured consideration of New York’s plan' amendments entitled to judicial deference. See U.S. CMS Amicus Br. at 8-9.7 Because that representation certainly merits deference from this Court, we proceed to address the merits of plaintiffs’ home health services claim de novo.

The Medicaid Act does not define the meaning of “home health services.” See 42 U.S.C. § 1396a(a)(10)(D).. Implementing regulations issued by HHS explain that such services include “[m]edical supplies, equipment, and appliances suitable for use in any setting in which normal life activities take place,” 42 C.F.R. § 440.70(b)(3) (effective July 1, 2016). In July 2011, CMS issued a proposed rule containing more specific definitions of b.oth “supplies” end “equipment.”. The final rule was issued on February 2, 2016. See *248Medicaid Program; Faee-to-Face Requirements for Home Health Services; Policy Changes and Clarifications Related to Home Health, 81 Fed.Reg. ,5580, 5566-67 (Feb, 2, 2016) (codified at 42 C.F.R. § 440.70). The rule defines medical “supplies” as “health care related items that are consumable or disposable, or cannot withstand repeated use by more than one individual,” and medical “equipment and appliances” as “items that are primarily and customarily used to. serve a medical purpose, generally are, not useful to an individual in the absence of a disability, illness or injury, can withstand repeated use, and can be reusable or removable.” 42 C.F.R. § 440.70(b)(3)(i) — (ii) (effective July 1, 2016). We owe CMS’s definitions a “significant measure of deference.” Cmty. Health Ctr., 311 F.3d at 137. As discussed in greater detail below, however, we find the definitions in the rule, which seem intended primarily to distinguish durable “equipment” from consumable “supplies,” less than helpful in answering the question before us. The definitions are so general that, if applied literally as a description of what items must be provided under the rubric of “home health services,” they would mandate the provision of any “health care related items” whatsover.

Independent of its obligation to cover home health services, a state participating in Medicaid may also elect to provide beneficiaries with a variety of optional benefits, including “prosthetic devices.” 42 U.S.C. § 1396d(a)(12). In contrast to its broad and general definition of “home health services,” “equipment,” and “supplies,” HHS has adopted a relatively specific definition of “prosthetic devices.” That term encompasses

replacement, corrective, or supportive devices prescribed by a physician or other licensed practitioner of the healing arts ... to — (1) Artificially replace a missing portion of the body; (2) Prevent or correct physical deformity or ■ malfunction; or (3