-1- 11-2003-cv Shakhnes, et al v. Berlin, et al UNITED STATES COURT OF APPEALS 1 F OR THE S ECOND C IRCUIT 2

_______________________________ 3 4 August Term, 2011 5 6 (Argued: June 28, 2012 Decided: August 13, 2012) 7 8 Docket No. 11-2003-cv 9

_______________________________ 10 11 B ORIS S HAKHNES , by his next friend Alla Shakhnes , individually and on behalf of 12 all others similarly situated, by his next friend Mikhail Feldman, individually and on 13 behalf of all others similarly situated, by his next frie nd Fei Mock, individually and on 14 behalf of all others similarly situated, by his next friend Sha-Sha Willis, individually and 15 on behalf of all others similarly situated, by his next friend Chaio Zh ang, individually and 16 on behalf of all others similarly situated, 17 18 Plaintiff-Appellee , 19 20 —v.— 21 22 E LIZABETH R. B ERLIN , Executive Deputy Commissioner of the New York State 23 Office of Temporary and Di sability Assistance, N IRAV R. S HAH , as Commissioner of the 24 New York State Department of Health, 25 26 Defendants-Appellants , 27 28 V ERNA E GGLESTON , Commissioner, New York City Human Resources 29 Administration, 30 31 Defendant

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_______________________________ 34 35 Before: 36 W INTER , S TRAUB , and C HIN , Circuit Judges

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_______________________________ 38 39 Appeal from an Order of the United States Di strict Court for the S outhern District of 40 New York (Richard J. Holwell, Judge ) granting declaratory and injunc tive relief in favor of class 41 plaintiffs, who are applicants for, or recipients of, certain Medicaid servic es. The District Court 42 permanently enjoined defendants to ensure that—in accordance with the Medicaid Act and an 43 applicable federal regulation—“fina l administrative action” is take n within 90 days of plaintiffs’ 44-2- requests for Medicaid fair hearings . The District Court declared “final administrative action” to 1 include the holding of fair hearings, the i ssuance of fair hearing decisions, and the 2 implementation of relief ordered in such decisions. We hold that plaintiffs’ statutory right to an 3 opportunity for Medicaid fair hearings, as cons trued by the regulation, is enforceable through 42 4 U.S.C. § 1983. But we also hold that the District Court’s injunctive order is overbroad because 5 “final administrative action” does not include the implementation of relief ordered in fair hearing 6 decisions. Accordingly, we AFFIRM in part and VACATE in part the Order of the District 7 Court, and we REMAND for proceedings consistent with this opinion. 8 9

_______________________________ 10 11 S ANDRA D. H AUSER , SNR Denton LLP, New York, N.Y., for 12 Plaintiff-Appellee

. 13 14 Y ISROEL S CHULMAN , New York Legal Assistance Group, New 15 York, N.Y., for Plaintiff-Appellee

. 16 17 S IMON H ELLER , Assistant Solicitor General (Barbara D. 18 Underwood, Solicitor General, Ri chard Dearing, Deputy Solicitor 19 General, on the brief ), for Eric T. Schneiderman, Attorney General of the 20 State of New York, New York, N.Y., for Defendants-Appellants

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_______________________________ 23 24 S TRAUB , Circuit Judge : 25 Defendants-Appellants, commi ssioners of the New York Stat e Office of Temporary and 26 Disability Assistance and of the New York State Department of Health, appeal from an Order 27 entered in the United States District Court for th e Southern District of New York (Richard J. 28 Howell, Judge ) granting declaratory and inj unctive relief against them and in favor of Plaintiffs29 Appellees, who are applicants for, or recipients of, Medicaid home health services who are not 30 solely challenging any decision re garding Medicaid eligibility. 31 Plaintiffs allege that they have a statut ory right, enforceable under 42 U.S.C. § 1983, to 32 an opportunity for Medicaid fair hearings. Plainti ffs further allege that th is right, as construed by 33 an applicable federal regulation, entitles them to “final administrative acti on” within 90 days of 34 their fair hearing requests, and that Defendants violated this right. 35-3- The District Court agreed. Itdeclared that “final admi nistrative action” includes the 1 holding of Medicaid fair hearings, the issuance of fair hearing decisions, and the implementation 2 of any relief ordered in those decisions. And it permanently enjoined Defendants to ensure that 3 “final administrative action”—so defined—is impl emented within 90 days of Plaintiffs’ fair 4 hearing requests. 5
We AFFIRM in part the Order of the District Cour t, because we conclude that Plaintiffs 6 have a right to a Medicaid heari ng and decision ordinarily within 90 days of their fair hearing 7 requests, and that such right is enforceable under § 1983. But we also conclude that the District 8 Court’s permanent injunction is ove rbroad because “final administra tive action” refers not to the 9 implementation of relief ordered in fair hearing de cisions, but to the holding of fair hearings and 10
to the issuance of fair heari ng decisions. Accordingly, we VACATE in part the Order of the 11 District Court, and we REMAND the matter for further proceedings consistent with this opinion. 12 BACKGROUND 13 I. Overview of Medicaid and the Fair Hearing System. 14 A. Medicaid. 15 “Medicaid is a cooperative federal-state program through which the Federal Government 16 provides financial assistance to States so th at they may furnish medical care to needy 17 individuals.” Wilder v. Va. Hosp. Ass’n , 496 U.S. 498, 502 (1990). 1 The federal and state 18 governments share the cost of Medicaid, but eachstate government admini sters its own Medicaid 19 plan. See Conn. Dep’t of Soc. Servs. v. Leavitt , 428 F.3d 138, 141 (2d Cir. 2005). State 20 Medicaid plans must, however, comply with applicable federal law and regulations. See 42 21 U.S.C. § 1396c; 42 C.F.R. § 430.0. 22

1 Title XIX of the Social Security Act (“Me dicaid Act”) is codified at 42 U.S.C. § 1396 et seq .-4- Any state that participates in Medicaid mu st designate “a single State agency” (“State 1 agency”) to administer—or to supervise the administration of—t he state’s Medicaid plan. See 42 2 U.S.C. § 1396a(a)(5). Although th e State agency may delegate to local entities the performance 3 of certain responsibilities, see 42 C.F.R. § 431.10(e), the State ag ency must (1) “[h]ave methods 4 to keep itself currently informed of the adherenc e of local [entities] to the State plan provisions 5 and the agency’s procedures for determining e ligibility,” and (2) “[t]ake corrective action to 6 ensure their adhere nce,” 42 C.F.R. § 435.903. 7 B. The Fair Hearing System. 8 1. Applicable Federal Law and Regulations. 9 States that participate in Medi caid must grant “an opportunity for a fair hearing before the 10 State agency to any individual whose claim for me dical assistance under the pl an is denied or is 11 not acted upon with reasonable prompt ness.” 42 U.S.C. § 1396a(a)(3). 12 Section 431.244 of Title 42 of the Code of Federal Regulations—entitled “Hearing 13 decisions”—provides that the State agency “must take final administrative action . . . 14 [o]rdinarily, within 90 days” of the date a fair hearing is requested. See 42 C.F.R. 15 § 431.244(f)(1)(ii) (“regulation”). Th e phrase “final administrative action” is not defined in the 16 regulation or in the Medicaid Act. 17 2. New York’s Fair Hearing System. 18 In New York, the State agency responsible fo r administering Medicaid is the New York 19 State Department of Health (“DOH”). See N.Y. Soc. Serv. Law § 363-a(1). 20 In accordance with fede ral law, the DOH has established a Medicaid fair hearing system, 21 which purportedly allows individuals an opportun ity to be heard with respect to claims for 22
medical assistance that are “d enied or [are] not acted upon with reasonable promptness.” 42 23-5- U.S.C. § 1396a(a)(3); see N.Y. Soc. Serv. Law § 22. The DOH has elected to delegate to the 1 New York State Office of Temporary and Disabi lity Assistance (“OTDA”) the duty to conduct 2 Medicaid fair hearings. But the DOH itself rema ins responsible for “mak ing final administrative 3 determinations and issuing final decisions,” see N.Y. Soc. Serv. Law § 364(2)(h), and for 4 ensuring the fair hearing system’s comp liance with federal law and regulations, see 42 C.F.R. 5 § 431.205. 6 II. The Instant Matter. 7 A. The Complaint. 8 Plaintiffs in this class acti on are residents of New York C ity who applied for or received 9
Medicaid-funded home health services, 2 and who requested or will request fair hearings to 10 challenge the denial, reduction, ortermination of such services. 11 For purposes of this appeal, Plaintiffs allege that DOH and OTDA (collectively, 12 “Defendants”) failed “to take and/ or ensure final administrative action within 90 days from the 13 date [Plaintiffs] request fair he arings challenging the denial, disc ontinuance and/or reduction of 14 Medicaid home health services” (“ 90-day claim”). Am. Compl. ¶ 131. According to Plaintiffs, 15 this conduct violated their st atutory right to an opportunity for Medicaid fair hearings, see 42 16 U.S.C. § 1396a(a)(3)—a right wh ich, as construed by the regulati on, allegedly entitles Plaintiffs 17 to “final administrative action . . . [o]rdinarily, within 90 days” from the dates they requested fair 18 hearings, see 42 C.F.R. § 431.244(f)(1)(ii). See id. 19 Plaintiffs claim they may enforce the fo regoing statutory right—as construed by the 20 regulation—through an action under 42 U.S.C. § 1983. 21
// 22

2 “Home health services” is a category of services provided to Medicaid recipients in the home, rather than in a ho spital or other facility. See 42 C.F.R. § 440.70.-6- B. Proceedings in the District Court. 1 Following discovery, Plaintiffs moved for cl ass certification and for partial summary 2 judgment on the 90-day claim. Defendants cross-moved for summ ary judgment, arguing 3 “primarily . . . that there is no cause of action for the alleged deficiencies in Medicaid Fair 4 Hearing procedures.” Shakhnes ex rel. Shakhnes v. Eggleston , 740 F. Supp. 2d 602, 609 5 (S.D.N.Y. 2010). 6
* * * 7 By Memorandum Opinion & Order filed Sept ember 30, 2010 (“2010 Order”), the District 8 Court certified Plaintiffs’ proposed class, granted partial summary judgment in favor of Plaintiffs 9 on the 90-day claim, and denied Defendant s’ cross-motion for summary judgment. See 10 Shakhnes , 740 F. Supp. 2d at 637. 11 First, the District Court held that the fair hearing requirement in 42 U.S.C. § 1396a(a)(3) 12 is enforceable through a cause of action under § 1983. See id. at 615-16. 13 Second, the District Court conc luded that the regulation’s 90 -day requirement defines the 14 content of the statutory right to a fair hearing. That is, the District Court held that the 15 “‘ordinarily, within 90 days’ requirement defi nes the temporal element of a § 1983 cause of 16 action for enforcement of 42 U.S.C. § 1396a(a)(3).” Id. at 618 (quoting 42 C.F.R. 17 § 431.244(f)(1)). 18 In short, the District Court concluded that Plaintiffs have a cause of action to enforce 19 their statutory right to an opportunity for a fair hearing, as defined by the regulation’s 20 requirement that “final administrative action” be taken within the specified time frame. Based 21 on the record evidence, the District Court c oncluded that Defendants violated that right. 22
* * * 23-7- The District Court subsequen tly issued an Order granting de claratory and injunctive relief 1 in favor of Plaintiffs. See Order, Shakhnes ex rel. Shakhnes v. Eggleston , No. 06 Civ. 4778, 2 (S.D.N.Y. Apr. 15, 2011), ECF No. 146 (“2011 Order”). 3 In pertinent part, the District Court declared that 4 Final Administrative Action occurs when defendants, separately or collectively, 5 have scheduled a Fair Hearing, held th e Fair Hearing, issued a Decision After 6 Fair Hearing (“DAFH”), and taken all actions necessary to implement the relief 7 ordered in the DAFH. For cases in wh ich care is ordered by the DAFH, Final 8 Administrative Action occurs on the da te on which an aide goes to the 9 Appellant’s home to provide the ordered home health care services. 10 11 Id. at 2 ¶ 4. 12 13 The District Court also dire cted Defendants to ensure that “Final Administrative 14 Action”—as defined above—is provided “within 90 da ys of . . . [a] request for a Fair Hearing.” 15
Id. at 3 ¶ 7. 16 C. Subsequent Proceedings. 17 Defendants now appeal. 18 First, they argue that the District Court erred by concluding that the regulation “merely 19 flesh[es] out the meaning of” the statutory right to an opportunity for a fair hearing. Def. Mem. 20 at 22. Defendants contend that because the regul ation’s 90-day requirement is an “additional” 21 obligation “not contained or reasonably implicit in [the Medicaid Act], the regulation cannot be 22 enforced through § 1983.” Id. 23 Second, Defendants argue that the District C ourt’s injunction is ove rbroad. Specifically, 24 they argue (1) that “the districtcourt’s construction of the phrase ‘final administrative action’ to 25 include the actual provision of serv ices is wrong as a matter of law,” id. at 21; and (2) that the 26 injunction applies the 90-day requirement to certa in hearings “that are ou tside the express terms 27 of the regulation,” id. at 43. 28-8- DISCUSSION 1 I. Standards of Review. 2 We review de novo a district court’s legal c onclusions made in the context of an order 3 granting summary judgment. See Vera v. Saks & Co. , 335 F.3d 109, 116 (2d Cir. 2003) (per 4 curiam). 5 “We review the scope of a district court’s injunction for abus e of discretion, which can be 6 found if the district court . . . incorrectly applied the law.” Catanzano v. Wing , 103 F.3d 223, 7 228 (2d Cir. 1996) (citation and quotations omitted). 8 II. The Right to an Opportunity for a Fair Hearing. 9 The District Court correctly c oncluded in its 2010 Order that Plaintiffs’ statutory right to 10 an opportunity for Medicaid fair hearings—a s construed by the regulation—is enforceable 11 through § 1983. 3 12
// 13

3 Plaintiffs argue that we l ack jurisdiction to consider any aspect of the District Court’s 2010 Order granting partial summary judgment, because Defendants appealed only from the District Court’s 2011 Order granting d eclaratory and injunctive relief. Plaintiffs are wrong. In revi ewing an order granting a pe rmanent injunction, we “may also address the summary judgment order that servedas the district court’ s principal legal basis for granting the injunction,” at least where “the district court’s ruling on summary judgment was inextricably intertwined with its ruli ng granting a permanent injunction.” Law v. NCAA , 134 F.3d 1010, 1015 (10th Cir. 1998); see also SongByrd, Inc. v. Estate of Grossman , 206 F.3d 172, 178 (2d Cir. 2000) (an “appeal from a final judgment brings up for review all reviewable rulings which produced the judgment” ( quotations omitted)).
The 2010 Order served as the District Cour t’s “principal legal basis for granting” declaratory and injunctive relief in the 2011 Order. See Law , 134 F.3d at 1015. Any doubt as to whether the two Orders are “ine xtricably intertwined” should ha ve been dispelled by the first sentence of the 2011 Order, which states that the District Court granted cer tain relief “[f]or the reasons set forth in [the 2010 Order].” See 2011 Order at 1. In short, Defendants’ failure to explicitly stat e in their Notice of Appeal that they sought to appeal from the 2010 Order does not pr eclude our review of that Order.-9- A. Applicable Framework. 1 Section 1983 creates a cause of action agains t any person who, acting under color of state 2 law, abridges “rights, privileges, or immunities secured by the Constitution and laws” of the 3 United States. 42 U.S.C. § 1983. Violations of rights thus give rise to § 1983 actions; mere 4 violations of laws do not. See Gonzaga Univ. v. Doe , 536 U.S. 273, 284-85 (2002). The 5 question, then, is whether an alleged right is enforceable under § 1983. 6 1. Source of the Alleged Right. 7 We think it important to underscore the source of the alleged right here at issue. 8 Defendants correctly observe that many of our Sister Courts have he ld that regulations 9 may not independently create individual rights enforceable under § 1983. 4 But this observation 10 is beside the point, because the District Court did not hold that the regulation here at issue 11 independently creates a ri ght enforceable under § 1983. 12 Instead, the District Court he ld that Plaintiffs have a statutory right under 42 U.S.C. 13 § 1396a(a)(3) to an opportunity for Medicaid fair h earings that is enforcea ble through a cause of 14 action under § 1983. Defendants do not argue thatthis particular ho lding was in error. 15 2. Determining the Scope of the Alleged Right. 16 Defendants do, however, argue that the District Court misconstrued the scope of 17 Plaintiffs’ statutory right to an opportunity for Me dicaid fair hearings. Th at is, Defendants argue 18 that the regulation requiring “final administrativ e action” ordinarily within 90 days of a fair 19 hearing request cannot properly be deemed to “merely flesh out the meaning of” the statutory 20

4 See, e.g. , Johnson v. City of Detroit , 446 F.3d 614, 629 (6th Cir. 2006); Save Our Valley v. Sound Transit , 335 F.3d 932, 939 (9th Cir. 2003); S. Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot. , 274 F.3d 771, 790 (3d Cir. 2001); Harris v. James , 127 F.3d 993, 1009 (11th Cir. 1997); Smith v. Kirk , 821 F.2d 980, 984 (4th Cir. 1987); see also D.D. v. N.Y.C. Bd. of Educ. , 465 F.3d 503, 513 (2d Cir. 2006) (declini ng to address the issue).-10- right to an opportunity for Medicaid fair heari ngs. Def. Mem. at 22 (quotations omitted). As a 1 result—say Defendants—Plaintiffs cannot enforce the statute in c onjunction with the regulation. 2 a. Applicable Standard. 3 It is well-settled that, “[a]s an agency interpretation of a statute, a regulation may be 4 relevant in determining the scope of the right conferred by Congress.” Save Our Valley v. Sound 5
Transit , 335 F.3d 932, 943 (9th Cir. 2003). The followi ng rubric guides our inquiry in that 6 regard: 7 [S]o long as the statute itself confers a specific ri ght upon the plaintiff, 8 and a valid regulation merely further defines or flesh es out the content of that 9 right , then the statute—in conjunction withthe regulation—may create a federal 10 right as further defined by the regulation. . . . 11 12 On the other hand, if the regulation defines the content of a statutory 13 provision that creates no fe deral right . . . , or if the regulation goes beyond 14 explicating the specific content of the statutory provision and imposes distinct 15 obligations in order to further the br oad objectives underlying the statutory 16 provision, . . . the regulation is too far removed from Congressional intent to 17 constitute a “federal right” enforceable under § 1983. 18 19 Harris v. James , 127 F.3d 993, 1009 (11th Cir. 1997) (quotations omitted) (emphasis and 20 formatting added); see also D.D. v. N.Y.C. Bd. of Educ. , 465 F.3d 503, 513 (2d Cir. 2006) 21 (parenthetically quoting Harris ). 22 b. Applications of the Standard. 23 A review of the case law in this area proves instructive. 24
* * * 25 We begin with Wright v. City of Roanoke Re development and Housing Authority , 479 26 U.S. 418 (1987), a decision on which the Eleventh Ci rcuit relied in formulating the rubric we 27 apply here, see Harris , 127 F.3d at 1008-09. 28-11- The plaintiffs in Wright brought a § 1983 claim alleging th at a public housing authority 1 overbilled them for utiliti es. According to the plaintiffs, the housing authority’s conduct violated 2 (i) a federal statute, which imposed a rent ceil ing based on plaintiffs’ incomes, and (ii) the 3 statute’s implementing regulations , which required the housing authority to include a reasonable 4 utility allowance in plaintiffs’ rents. See Wright , 479 U.S. at 419-20. In response, the housing 5 authority argued that neither the statute nor the re gulations gave the plain tiffs a right enforceable 6 through § 1983. See id. at 429-430. 7 The Court rejected this argument. According to the Court, the app licable statute “could 8 not be clearer: . . . tenants could be charged as rent no more and no less than 30 percent of their 9 income.” Id. at 430. In addition, the applicable regulations “expressl y required that a 10
‘reasonable’ amount for utilities be included in rent th at [the housing authority] was allowed to 11 charge.” Id. The Court then observed that the releva nt federal agency had “adhered” to the 12 regulations’ “interpretati on” of the statute, and noted that the agency’s “view is entitled to 13
deference.” See id. The Court rejected the argument that the regulations’ “defin ition of rent as 14 including a reasonable charge for utilitie s is not authorized by the statute.” Id. at 431 n.11. 15 The Court subsequently described its holding in Wright as follows: 16 17 [A] statute providing thattenants in low-income housing could only be 18 charged 30% of their in come in rent, in conjunction with regulations 19 providing that “reasonable utilities” costs were in cluded in the rental 20 figure, created [a] rightunder § 1983 to not be charged more than a 21 “reasonable” amount for utilities. 22 23 Suter v. Artist M. , 503 U.S. 347, 361 n.13 (1992). 24 We emphasize that “the regulation at issue in Wright merely defined the specific right 25 that Congress already had conferred through the statute.” See S. Camden Citizens in Action v 26 N.J. Dep’t of Envtl. Prot. , 274 F.3d 771, 783 (3d Cir. 2001). In other words, “the Wright Court 27-12- located the alleged right in the statutory provision and then relied upon the implementing 1 regulations to define and interpret that right.” Id. ; see also Harris , 127 F.3d at 1007-08 (same). 2
* * * 3 Our decision in D.D. v. New York City Board of Education , 465 F.3d 503 (2d Cir. 2006) 4 provides another example of a regul ation deemed to “define” the scope of an extant, statutory 5 right, such that the right—so defined—is enforceable under § 1983. 6 The plaintiffs in D.D. alleged that the New York City Department of Education (“DOE”) 7 violated their rights under the Individuals w ith Disabilities Edu cation Act (“IDEA”). Id. at 506. 8 Pursuant to the IDEA, states must provide di sabled students with “f ree appropriate public 9 education” designed to serv e the students’ needs. Id. “Free appropriate pub lic education” is 10 defined in part as “special educa tion and related services that . . . are provided in conformity with 11 the individualized education progra m [“IEP”] required under [the IDEA].” 5 Id. at 512 12 (quotations omitted). The IDEA do es not specify a time frame for implementing an IEP after it 13 has been developed. Id. But the applicable federal regu lation requires that the IEP be 14 “implemented as soon as possible ” following its development. Id. at 512-13 (quotations 15 omitted) (emphasis added). The plaintiffs in D.D. alleged that the DOE violated the IDEA by 16 failing to implement their IEPs “i mmediately, or at least within 30 days, after their IEPs [were] 17 developed.” Id. at 512 & n.11. 18 Citing to Wright , we concluded (i) that the IDEA “crea tes the right to a free appropriate 19 public education enforceable through § 1983,” and (i i) that the federal regulation “merely defines 20 the scope of that right with respect to the requisite time fr ame for implementing an IEP.” Id. at 21 513. We emphasized, however, that the federa l regulation “requires only that IEPs be 22

5 The IEP “is a written statement that . . . describes the specially designed instruction and services that will enable the chil d to meet [certain] objectives.” D.D. , 465 F.3d at 507-08 (quotations omitted).-13- implemented ‘as soon as possible,’” and not “immedi ately” or within 30 da ys, as the plaintiffs 1
had asserted. See id. 2
* * * 3 The Eleventh Circuit’s decision in Harris provides an example of a regulation that “goes 4 beyond explicating the specific content of [a] st atutory provision,” such that the underlying 5 statutory right—at least as “defined” by the regulation—could not be enforced under § 1983. 6
See Harris , 127 F.3d at 1009. 7
In Harris , the court considered whether Medicaid recipients have a federal right to 8 transportation to and from Medi caid providers, which right may be enforced in an action under 9 § 1983. Id. at 996. The court answered th at question in the negative. 10 As a preliminary matter, the Harris court noted that “the plai ntiffs seek to enforce a 11 transportation requirement that appears explicitly not in the Medicaid Act, but in a federal 12 regulation.” Id. at 1005. But the court rejected any sugges tion that an enforceable right could be 13 created (i) by a regulation alone, or (ii) by a regulation’s “valid . . . interpretation of a statute that 14 creates some enforceable right.” Id. at 1008. Instead, the court held that the plaintiffs’ purported 15 right would be enforceable under § 1983 only if “t he statute itself conf ers a specific right upon 16 [them], and [the] valid regul ation merely further defines or fleshe s out the content of that right.” 17 Id. at 1009. Under such circumstances, “the statute—in conjunction with the regulation— 18 [would] create a federal right as fu rther defined by the regulation.” Id. (quotations omitted). 19
The court then examined certain of the st atutory provisions which allegedly conferred 20 specific rights on the plaintiffs. See id. at 1010-12. One required state Medicaid plans to provide 21 medical assistance “with reasonable promptness.” Id. at 1005. Another required the plans to 22 provide comparable assistance to differe nt categories of needy individuals. See id. The court 23-14- assumed that these provisions “cre ate[ ] some federal right.” See id. at 1011 & n.27. And the 1 court further assumed that “the transportation regul ation is a valid interpre tation of each of these 2 provisions.” See id. at 1011. But the court nevertheless co ncluded that the plaintiffs enjoyed no 3 “federal right to transportation.” Id. The court reasoned as follows: 4 [T]he transportation regulation would be valid not because it 5 reasonably defines the content of ri ghts created by the statutory 6 provisions , as did the regulation in Wright , but only because the regulation 7 furthers the broad objectives underl ying each statutory provision. 8 9 In other words, we do not think th at transportation to and from 10 providers is reasonably unde rstood to be part of the content of a [statutory] 11 right to prompt provision of assistance [or] comparable assistance . . . . 12 Instead, if the regulation is a valid interpretation of these [statutory] 13 provisions, it would be because transportation may be a reasonable means 14 of ensuring the prompt provision of assistan ce [or] comparable assistance . 15 . . . Such links to Congressional inte nt may be sufficient to support the 16 validity of a regulation; however, we think they are too tenuous to support 17 a conclusion that Congress has una mbiguously conferre d upon Medicaid 18 recipients a federal right to tr ansportation enforceable under § 1983. 19 20 Id. at 1011-12 (first emphasis and formatting added). 21 B. Analysis. 22 The District Court correctly held that42 U.S.C. § 1396a(a)(3)—as construed by the 23 regulation—creates a right, enfo rceable under § 1983, to receive a fa ir hearing and a fair hearing 24 decision “[o]rdinarily, within 90 da ys” of a fair hearing request. 25 1. Fair Hearings. 26 We conclude that the regulation’s 90-day re quirement “merely further defines or fleshes 27 out the content” of the right to “an opportunity” for Medicaid fair hearings, such that Plaintiffs 28 have a right—enforceable under § 1983—to final ad ministrative action “[o]rdinarily, within 90 29 days” of their request, see 42 C.F.R. § 431.244(f). 30
* * * 31-15- As discussed, the regulation here at issue says Defendants must take “final 1 administrative action . . . [o]rdinarily, within 90 da ys” of the date a fair hearing is requested. See 2 id. § 431.244(f)(1)(ii). Defendants st renuously argue that “final admi nistrative action” refers to 3
the issuance of decisions after fair hearings. 6 Defendants’ argument makes sense; the regulation 4 is, after all, entitled “Hearing decisions.” See id. § 431.244. If the regulation calls for the 5 issuance of a decision after a fair hearing “[o]rd inarily, within 90 days” of the date the fair 6 hearing was requested, the regulation necessarily also calls for the he aring itself to be held within 7 that time frame. 8 But does this aspect of the regulation merely fu rther define or flesh out the content of the 9 statutory right to an opportunity for Medicaid fair hearings? We conclude it does. And we think 10
our decision in D.D. leaves no room to conclude otherwise. 11
The statute at issue in D.D. —the IDEA—did not specify a time frame for implementing 12 the statutory right to a free appropriate public education. The regulation at issue in D.D. , 13 however, required that IEPs be implemented “as soon as possible” following their development. 14 We concluded that this regulati on “merely defines the scope” of the statutory right to a free 15 appropriate public education “wit h respect to the requisite time frame for implementing” that 16 right. See D.D. , 465 F.3d at 513. 17 Similarly, the Medicaid Act does not specify a time frame within which Defendants must 18 provide Plaintiffs with Medicaid fair hearings; the relevant statutory pr ovision says only that 19

6 See Def. Mem. at 30 (“[T]he ninety-day time frame of 42 C.F.R. § 431.244(f) applies to the adjudication of fair hearings.”); id. at 35 (“[T]he term ‘final admi nistrative action’ refers . . . to the issuance of a final administrative decision by the state agency that is subject to judicial review.”); id. at 37 (“[T]he plain text of the re gulation governs hearing decisions.”); id. (“[T]he term ‘final administrative action’ is most reasonably read to m ean a final and definitive decision after fair hearing by the state agency.”); id. at 41 (noting that the re levant federal agency has “repeatedly described the ninety -day time limit in § 431.244(f) as a deadline for issuance of a final hearing decision”).-16- Defendants must grant “an opportunity” for such hearings to individuals whose claims for 1 medical assistance have not been de cided with reasonable promptness. See 42 U.S.C. 2 § 1396a(a)(3). Just as the regulation in D.D. “merely define[d]” the time frame for implementing 3 the right to a free appropriate publ ic education, the 90-day requireme nt in the regulation here at 4 issue “merely defines” the time frame with respec t to Plaintiffs’ right to an “opportunity” for 5 Medicaid fair hearings. 7 Or, as the District Court reasoned, th e right to an opportunity for a fair 6 hearing includes the right to a fair hearing with in some period of time, and the regulation’s 90- 7 day requirement simply defines what that period of time is. 8
* * * 9 We find no merit in Defe ndants’ contention that D.D. is inapposite to the instant matter. 10 Defendants argue that, unlike the regulation at issue in D.D. , the regulation at issue here 11 imposes specific temporal guidelines and thus affo rds Plaintiffs greater relief than they could 12 obtain under the Medicaid Act itself. Sp ecifically, Defendants contend that, in D.D. , we 13 “construed the regulation’s ‘as s oon as possible’ language as by de sign, a flexible requirement, 14 and stressed that the regulati on did not impose a rigid, outside time frame for implementation, 15 but rather permitted specific inquiry into the causes of the delay in the particular case.” Def. 16 Mem. at 29 (quotations omitted). By contrast—D efendants argue—the regulation at issue in the 17 instant matter “imposes a rigid, outside time fram e for final administrative action . . ., and does 18 not permit specific inquiry into the causes of the delay on a case-by-case basis.” Id. at 30 19 (quotations omitted). 20

7 Cf. Doe v. Chiles , 136 F.3d 709, 717 (11th Cir. 1998) (statutory righ t to medical assistance “with reasonable promptness” was de emed to be “fleshed out” by corresponding regulations, which required (a) th at medical aid be furnished “without any delay caused by the agency’s administrative procedures,” and (b) that eligibility determinations be made within 90 days for disability-based applications and within 45 days for all others).-17- Contrary to Defendants’ reading of D.D. , we did not hold in that case that a regulation 1 may be deemed to “further define[ ]” or “f lesh[ ] out the content” of a statutory right only if the 2 regulation imposes “flexible” requireme nts. Rather, our discussion in D.D. of the “flexible” 3 nature of the language in the re gulation there at issue came in response to an argument made by 4 the plaintiffs: According to the plaintiffs, the regulation in D.D. required that their statutory right 5 to a free appropriate public educat ion be implemented either “immed iately,” or “within 30 days.” 6
See D.D. , 465 F.3d at 513. We rejected that argumentbased on our review of certain rulemaking 7 “commentary.” We observed that the Secretary of Education had explicitly declined to adopt “a 8 rigid, outside time frame for implementation.” See id. at 514. This observation does not, 9 however, signify that a regulation’ s “rigid” temporal guideline may never “further define[ ]” or 10 “flesh[ ] out the content” of an underlying statutory right. 11
* * * 12 Finally, we note that th e statute and regulation at issue here stand in contrast to those that 13 were at issue in Harris . The regulation in Harris required that the plaintiffs be given 14 transportation to and from Medicaid providers. Harris , 127 F.3d at 996. Such a requirement 15 could not “reasonably [be] unders tood to be part of the content of,” for example, a statutory right 16 to receive medical assistance w ith reasonable promptness; the re gulation thus did not merely 17 define the content of that underlying right. See id. at 1012. By contrast, the 90-day requirement 18 in the regulation at issue here ma y reasonably be understood to be pa rt of the content of the right 19 to an opportunity for Medicaid fair hearings; the re gulation merely defines th e scope of that right 20 with respect to the time frame in wh ich the right must be provided. See D.D. , 465 F.3d at 513. 21
// 22
// 23-18- 2. Fair Hearing Decisions. 1 We further conclude that the right to an oppor tunity for Medicaid “fair hearings” includes 2 a right to a decision following such hearings. Th at being so, we have li ttle difficulty concluding 3 that the regulation’s 90-d ay requirement “merely further defines or fleshes out the content of that 4 right.” See Harris , 127 F.3d at 1009. 5
* * * 6 The Medicaid Act does not define the contour s of “a fair hearing” for purposes of 42 7 U.S.C. § 1396a(a)(3). But the a pplicable federal regulation sa ys that the Medicaid “hearing 8 system must meet the due pr ocess standards set forth in Goldberg v. Kelly , 397 U.S. 254 (1970).” 9
See 42 C.F.R. § 431.205(d). 10 The due process standards set forth in Goldberg entitle Plaintiffs to decisions following 11 their Medicaid fair hearings. For one, Goldberg says that “ the decisionmaker’s conclusion

. . . 12 must rest solely on the legal rules and evidence adduced at the hearing,” and that “ the decision 13 maker should state the reasons for his determ ination and indicate th e evidence he relied on .” 14 Goldberg , 397 U.S. at 271 (emphasis added). In addition, the Goldberg Court emphasized that 15 “an impartial decision maker is essential.” Id. We see little reason why this would be so unless 16 the right to a fair hearing in cludes the right to a decision. 8 17

8 See, e.g. , Morgan v. United States , 304 U.S. 1, 18-19 (1938) (“Those who are brought into contest with the Government in a quasijudicial proceeding . . . are entitled . . . to be heard upon its proposals before it issues its final command .” (emphasis added)); Grossmuller v. Int’l Union, United Auto., Aerospace & Ag ric. Implement Workers of Am. , 715 F.2d 853, 858 n.5 (3d Cir. 1983) (“[T]he persistent core requirements of review intended to be full and fair include . . . having the decision-maker consider the evidence presented by both parties prior to reaching and rendering his decision .” (emphasis added) (citing Morgan )); Billington v. Underwood , 613 F.2d 91, 95 (5th Cir. 1980) (per curiam) (“The very notion of a hearing, however informal, connotes that the decision maker will listen to the arguments of both sides before basing a decision on the evidence and legal rules adduced at the hearing.” (emphasis added)); Whitfield v. Hanges , 222 F. 745, 749 (8th Cir. 1915) (“Indispensable requisites of a fair hearing . . . are that . . . the decision shall be governed by and based upo n the evidence at the hearing, and that only; and that the-19- In light of the foregoing, we c onclude that the statutory rightto an opportunity for a “fair 1 hearing” includes the right to a decision. Implicit in the right to a decisi on is that the decision 2 must be issued within some period of time. The regulation—which, Defendants concede, 3 encompasses the issuance of fair hearing deci sions—says what that period of time is. 4 Accordingly, we hold that the regulation merely defines or fleshes out Plaintiffs’ fair hearing 5 right, which is enforceable under § 1983. See D.D. , 465 F.3d at 513. 6 III. Scope of the Injunction. 7 Although the District Court corr ectly held that the statutory right to an opportunity for 8 Medicaid fair hearings—as construed by the regulation—is enforceable under § 1983, the 9 District Court exceeded the bounds of its allo wable discretion by granting an impermissibly 10 broad injunction. 9 11 An injunction is overbroad when it restrain s defendants from engagi ng in legal conduct. 12 See City of N.Y. v. Mickalis Pawn Shop, LLC , 645 F.3d 114, 145 (2d Cir. 2011). 13 The injunction here at issue is thus ov erbroad because it compels Defendants to 14 implement the relief ordered in a fair hearing decision with in the regulation’s 90-day time frame, 15 despite the fact that the regulation im poses on Defendants no such obligation. 16

decision shall not be without substantial evid ence taken at the hear ing to support it.”); see also Slaney v. Int’l Amateur Athletic Fed’n , 244 F.3d 580, 592 (7th Cir. 2001) (“A fundamentally fair hearing is one that meets the minimal requirem ents of fairness—adequate notice, a hearing on the evidence, and an impartial decision by the arbitrator.” (quotations omitted) (emphasis added)).

9 Defendants’ arguments as to the scope of the injunction are advanced for the first time on appeal. We nevertheless exercise our discretion to consider these arguments, because (a) they raise pure issues of law, see, e.g. , Dean v. Blumenthal , 577 F.3d 60, 67 n.6 (2d Cir. 2009); Vintero Corp. v. Corporacion Venezolana de Fomento , 675 F.2d 513, 515 (2d Cir. 1982) (per curiam); and (b) doing so is “necessary to remedy [the] obvious injustice,” Greene v. United States , 13 F.3d 577, 586 (2d Cir. 1994), that would resu lt if Defendants were forced to comply with an impermissible injunction.-20- Defendants also contend that the injunc tion is overbroad be cause it applies the 1 regulation’s 90-day requirement to persons who are not enrollees in Medicaid managed care 2 organizations. We disagree. 3 A. “Final Administrative Action” Does No t Include the Implementation of Relief. 4 In its 2011 Order, the District Court enjoined Defendants to provide “final administrative 5 action” within 90 days of a request for a Medicaid fair hearing. According to the District Court, 6 “[f]inal [a]dministrative [a]ction occurs when [D]efendants . . . have . . . taken all actions 7 necessary to implement the relief ordered ” in decisions after fair hearings. 2011 Order at 2 ¶ 4 8 (emphasis added). 9 We do not agree with the Distri ct Court’s construction of “f inal administrative action.” 10 That phrase is not defined in the Medicaid Act or in the applicable regulations. But the structure, 11 text, and drafting history of the a pplicable regulations, together w ith a review of administrative 12 law principles and other stat utory and regulatory provisions, convince us that “final 13 administrative action” does not include the impl ementation of relief ordered in fair hearing 14 decisions. Accordingly, although we have previously acknowledge d that the statutory right to 15 Medicaid fair hearings under 42 U.S.C. § 1396a (a)(3) “must include w ithin it the right to 16 effective redress,” Catanzano , 103 F.3d at 229, that right—at l east in conjunction with the 17 regulation here at issue—does notrequire Defendants to implemen t the relief ordered in fair 18 hearing decisions within the regulation’s 90-day time frame. The District Court’s injunction is 19 thus overbroad. Cf. Mickalis Pawn Shop , 645 F.3d at 145. 20
// 21
// 22
// 23-21- 1. Structure, Text, and Drafting History. 1 The structure and text of the applicable regu lations lead us to c onclude that “final 2 administrative action” refers to the holding of fa ir hearings and to the issuance of fair hearing 3 decisions, rather than to the implementati on of relief ordered in those decisions. 4 As a preliminary matter, the regulation app ears under a subpart entitled “Fair Hearings 5 For Applicants and Recipients.” The regulation itself is entitled “ Hearing decisions .” See 42 6 C.F.R. § 431.244 (emphasis added). It sets fo rth the required elemen ts of fair hearing 7 decisions, 10 and it states that such decisions “must be based exclusively on evidence introduced 8 at the hearing,” id. § 431.244(a). Subsection (f) of § 431.244—the subs ection at issue here— 9 appears between two subsections which relate excl usively to the issuance of decisions after fair 10 hearings: Section 431.244(e) details the requisi te elements of a decision following a de novo 11 hearing; Section 431.244(g) states that the public mu st have access to all hearing decisions. 12 The subject matter of § 431.244 is thus gene rally confined to the composition and 13 issuance of decisions after fair hearings. And nothi ng in the regulation’s textsuggests that “final 14 administrative action” encompasses the implementa tion of relief authorized in such decisions. 15 This makes sense, because a separate regula tion, entitled “Correctiv e action,” covers the 16 implementation of certain types of relief. See 42 C.F.R. § 431.246 (stating that Defendants must 17 provide retroactive benefits and provide for the admission to medical facilities if hearing 18 decisions so require). Indeed, we have observed that “the resu lts of [fair] hearings will be 19 binding on the state” based on the “Corrective act ion” regulation, rather than on the “Hearing 20 decision” regulation that is at issue here. See Catanzano , 103 F.3d at 228. 21

10 See , e.g. , 42 C.F.R. § 431.244(d) (stating that, in an evidentiary hearing, the decision must be in writing, and must summarize the facts and identify the regulations supporting the decision); id. § 431.244(e) (stating that, in a de novo h earing, the decision must specify the reasons for the decision, and must identify the supporting evidence and regulations).-22- * * * 1 The drafting history of the regulation furthe r demonstrates that the 90-day time frame 2 applies to the issuance of decisions rather than to the implementation of relief. 3 We begin with 45 C.F.R. § 205.10, the predecessor to 42 C.F.R. § 431.244. Section 4 205.10 was entitled “Fair hearings.” See Fair Hearings, 35 Fed. Reg. 8448 (May 29, 1970). 5 Subsection (11) of § 205.10 provided that “[p]rompt, definitive and final administrative action 6 will be taken within 60 days from the date of the request for a fair hearing, except where the 7 claimant requests a delay in the hearing.” Id. at 8449. The time frame for “[p]rompt, definitive, 8 and final administrative action” wa s later extended to 90 days. See Methods for Determination 9 of Eligibility, 38 Fed. Reg. 22,005, 22,008 (Aug. 15, 1973). The relevant agency explained the 10 need for the change as follows: “In view of the difficult position facing States with substantially 11 increased hearing caseloads , the 60-day period is considered insufficient for the orderly 12 processing of cases .” Id. at 22,006 (emphasis added). The agen cy concluded that “[n]inety days 13
for processing hearings ” was “a more realistic time frame.” Id. (emphasis added). And the 14 agency described the change as an “[e]xtension from 60 to 90 days for hearing decisions .” Id. 15 (emphasis omitted). 16 Later agency commentary similarly referre d to the 90-day requirement in § 431.244 as a 17 deadline for the issuance of hearing decisions. See, e.g. , Medicaid Program; Medicaid Managed 18 Care: New Provisions, 67 Fed. Reg. 41,989, 41,060 (June 14, 2002) (refere ncing “the 90-day 19 clock for a fair hearing decision ” (emphasis added)); id. (“[T]he State is required to resolve the 20 State fair hearing within 90 days.” (emphasis added)); id. at 41,064 (referenci ng “the overall 90- 21 day timeframe for a final fair hearing decision ” (emphasis added)); id. at 41,076 (referencing 22 “the 90-day timeframe for resolution of the State fair hearing ” (emphasis added)). 23-23- The agency’s commentary with respect to § 431.244(f)(2) and (3) is particularly 1 revealing. These provisions once required that “fin al administrative action” be taken within “72 2
hours” for certain cases nece ssitating expedited review. See 42 C.F.R. § 431.244(f)(2), (3) 3 (2001). The agency described this re quirement as follows: “States must conduct a State fair 4 hearing and issue a final decision on these cases . . . no later than 72 hour s from receipt of the 5 appeal.” Medicaid Program; Medicaid Managed Care, 66 Fed. Reg. 6228, 6338 (Jan. 19, 2001) 6 (emphasis added). 7 The provisions were later amended, such that “final administrative action” for expedited 8 cases was required “within 3 working da ys” of certain triggering events. See 42 C.F.R. 9 § 431.244(f)(2), (3) (2002). In e xplaining this amendment, the ag ency noted that “commenters 10 recommended that the State Medicaid agency be permitted 3 working days to hear expedited 11 appeals that they receive, rather than 72 hours.” 67 Fed. Reg. at 41,062 (emphasis added). The 12 agency “agree[d],” and noted that the am ended regulation “now requires the State to conduct a 13 fair hearing and make its decision within 3 working days.” Id. (emphasis added). 14 If taking “final administrative action” “with in 3 working days” means that the State is 15 required to implement relief in that time fr ame, the agency made no mention of it. 16 2. The State Medicaid Manual. 17 The State Medicaid Manual(“ Manual ”), to which we owe deference, 11 further indicates 18 that “final administrative action” refers not to the implementation of relief, but to the issuance of 19 fair hearing decisions. 20

11 See , e.g. , Sai Kwan Wong v. Doar , 571 F.3d 247, 258-60 (2d Cir. 2009); see also id. at 253 n.6 (noting that the Manual“makes available to all State Medicaid agencies . . . informational and procedural material needed by the States to administer the Medicaid program. . . . The manual provides instructions, regulatory c itations, and information for implementing provisions of Title XIX of the Social Security Act (the Act). Instructions are official-24- For one, the Manualsays that “[a] conclusive decision in the name of the State agency 1 shall be made by the hearing authority.” Manual§ 2903.2(A) (emphasis added). Although the 2 hearing authority may remand the matter to a local hearing officer where “the materials 3 submitted are insufficient to serve as [a] basis for a decision,” the Manual clarifies that such a 4
remand “ is not a substitute for definit ive and final administrative action .” Id. (emphasis added) 5 (quotations omitted). If “final ad ministrative action” refers to the issuance of a final agency 6 decision, the foregoing clarification is justifiable: It could make sense to clarify that a decision 7 to remand a matter for further consideration does not discharge the obligation to issue a final 8 decision . But if, as Plaintiffs contend, “final admi nistrative action” refers to the implementation 9 of relief, the foregoing clarification would be unnecessary: The decision to remand a matter for 10 further consideration could never constitute the implementation of relief. 11 In addition, § 2903.3 of the Manual —entitled “State Agency Responsibility In Carrying 12 Out The Hearing Decision”—states that Defendan ts “are responsible for assuring that the 13 [hearing authority]’s decision is carried out promptly .” Id. § 2903.3(A) (emphasis added). 14 “Promptly” does not, however, necessarily mean “within 90 days” of a re quest for a hearing. 15
Had the drafters of the Manualwished to use the latter standard in § 2903.3(A), they certainly 16 could have done so; indeed, the Manualrecites that standard in the very next subsection, see id. 17 § 2903.3(B). 18 3. Administrative Law Principles. 19 Well-settled principles of ad ministrative law further indicate that the phrase “final 20 administrative action” in the regulation here at issue refers to a final determination after a 21 Medicaid fair hearing, rather than to the implementation of relief. 22
interpretations of the law and re gulations, and, as such, are bindi ng on Medicaid St ate agencies”) (quotations omitted).-25- Under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. , courts may not review 1 agency actions unless such actions are “final.” See , e.g. , Bennett v. Spear , 520 U.S. 154, 177 2 (1997); Fund for Animals, Inc. v. United States BLM , 460 F.3d 13, 18 (D.C. Cir. 2006). An 3 agency action is final if two conditions are met: (1) “the action must mark the ‘consummation’ 4 of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory 5 nature,” and (2) “the action must be one by which ‘rights or obligations have been determined,’ 6 or from which ‘legal consequences will flow.’” Bennett , 520 U.S. at 177-78 (citation omitted). 7 Defining “final administrative action” in accordance with the background principles of 8 administrative law makes good sense. Plaintiffs ma y not obtain judicial re view of Medicaid fair 9 hearing decisions until such decisions are “final.” See N.Y. Soc. Serv. L. § 22(9)(b) (“Any 10 aggrieved party . . . may apply for review as provided in [N.Y. C.P.L.R. § 7801].”); N.Y. 11 C.P.L.R. § 7801 (“[A] proceeding under this article shall not be used to challenge a 12 determination . . . which is not final.”). The drafters of 42 C.F.R. § 431.244(f) were no doubt 13 aware of the administrative law scheme to which they contributed. We thus cannot discount the 14 possibility that they used the phrase “final administrative action” to signify the final 15 determination of rights or obligations which sets the stage for judicial re view in state court. 16 4. Other Statutory and Regulatory Provisions. 17 Finally, we note that other st atutory and regulator y provisions not at issue in this case 18 explicitly cover the furnishing of Medicaid. Section 1902(a)(8) of the Medicaid Act requires 19 state plans for medical assistance to provide that “medical assistan ce . . . shall be furnished with 20 reasonable promptness to all eligible individual s.” 42 U.S.C. § 1396a(a)(8). A regulation that 21 implements § 1902(a)(8) directs state agencies to “[f]urnish Medicaid promptly to beneficiaries 22 without any delay caused by the agency’s administra tive procedures.” 42 C.F.R. § 435.930(a). 23-26- Had the drafters of 42 C.F.R. § 431.244(f) wished to require th e “furnish[ing]” of 1 Medicaid within the regulation’s 90-day tim e frame, they clearly knew how to do so. 2 5. Summary. 3 In light of the foregoing, we conclude that “final administrative action” in 42 C.F.R. 4 § 431.244(f) does not include the implementation of relief ordered in decisions after Medicaid 5 fair hearings. The District Court thus ex ceeded the bounds of its allowable discretion by 6 enjoining Defendants to “take[ ] all actions neces sary to implement the relief ordered” in such 7 decisions within 90 days of Plai ntiffs’ fair hearing requests. See 2011 Order at 2 ¶ 4. 8 B. “Enrollees.” 9 As discussed, the injunction requires Defendant s to ensure that “every New York City 10 applicant for, and recipient of,” Medicaid- funded home health services receive final 11 administrative action within the time frame specified in 42 C.F.R. § 431.244(f). See 2011 Order 12 at 3 ¶ 7. 13 Defendants argue that the injunction is overbroad because it applies the 90-day 14 requirement “to fair hearings that are outside the express terms of the regulation.” Def. Mem. at 15 43. In particular, Defe ndants argue that 16 [T]he regulation’s ninety-day time frame, on its face, applies only to fair 17 hearings requested by enrollees in Me dicaid [managed care organizations 18 and prepaid inpatient health plans]. Yet the [D]istrict [C]ourt’s injunction 19 applies the ninety-day deadline to all Medicaid applicants’ and recipients’ 20 requests for fair hearing[s] . . ., even if those individuals are not enrollees 21 in Medicaid managed care. 22 23 Id. 24 We reject Defendants’ construction of the re gulation. In our view, the regulation applies 25 to all Medicaid “enrollees,” and not just to enrollees in manage d care organizations (“MCOs”). 26
* * * 27-27- Section 431.244(f), by its terms, applies to “enrollees.” Specifically, the regulation 1 provides that “final administra tive action” must be taken 2 [o]rdinarily, within 90 days from the earlier of the following: 3 4 (i) The date the enrollee filed [a managed care organization or 5 prepaid inpatient health plan appeal], not including the number 6 of days the enrollee took to subsequently file for a State fair 7 hearing; or 8 9 (ii) If permitted by the State, the date the enrollee filed for direct 10 access to a State fair hearing. 11 12 42 C.F.R. § 431.244(f) (emphasis added). 13 What, then, is the intended scope of “enrollees ”? The term is not defined in 42 C.F.R. 14 § 431.244. But the regulation’s drafti ng history, together with a defi nition provided in a related 15 regulation, convince us that the term must simp ly refer to persons who are enrolled in the 16 Medicaid program. 17 As originally implemented, the regulation provi ded that “[t]he agency must take final 18 administrative action within 90 days from th e date of the request for a hearing.” See 42 C.F.R. 19 § 431.244(f) (1979); see also Medicaid Program: Redesigna tion and Rewrite, 44 Fed. Reg. 20 17,926, 17,933 (Mar. 23, 1979). In 2001, the regulati on was amended to its current form. See 42 21 C.F.R. § 431.244(f) (2001). 22 The enactment of the Balanced Budget Act of 1997 (“BBA”), Pub. L. No. 105-33, 111 23 Stat. 251 (1997), led to the 2001 amendment. In brief, when the Medicaid program was 24 originally created, “coverage ty pically was provided through reim bursements by the State agency 25 to health care providers who su bmitted claims for payment afte r they provided health care 26 services to Medicaid benefici aries.” 67 Fed. Reg. at 40,989. This “fee-for-service” arrangement 27-28- gradually faded from prominence as State agenci es began to provide Me dicaid coverage through 1 contracts with MCOs. See id. ; see also id. at 40,992. 2 The BBA “significantly renovated the Medicaid managed care program.” Id. at 40,990. 3 In pertinent part, the BBA requi red MCOs “to establish intern al grievance procedures under 4 which Medicaid enrollees . . . may challenge the denial of co verage of, or payment for, medical 5
assistance.” See 42 C.F.R. § 438.400(a)(3) (emphasis added); see also 67 Fed. Reg. at 41,054. 6 An applicable regulation clarified that each MCO “must have a system in place for enrollees that 7 includes a grievance process, an appeal process, and access to the State’s fair hearing system.” 8 42 C.F.R. § 438.402 (emphasis added). 9 It was against this backdrop that the draf ters of 42 C.F.R. § 431.244(f) “proposed 10 conforming amendments . . . to reflect changes in terminology and other new provisions enacted 11 in the BBA.” 67 Fed. Reg. at 41,054. In particul ar, the drafters “made conforming changes to 12 the fair hearing regulations in [§ 431.244], to reflect the MCO gr ievance and appeals process.” 13 Id. at 41,054-55. Those changes app ear in the current version of the regulation, which, by its 14 terms, now explicitly applies on ly to Medicaid “enrollees.” 15 We find nothing in the foregoing drafting histor y which suggests that the relevant federal 16 agency intended to strip non-MC O enrollees of their long-standi ng statutory right to “final 17 administrative action” “[o]rd inarily, within 90 days.” See 42 U.S.C. § 1396a(a)(3); 42 C.F.R. § 18 431.244(f). As noted, the agency itself describe d the 2001 revision to the regulation as a mere 19 “conforming” amendment. 67 Fed. Reg. at 41,05 4. Defendants offer no evidence that the 20 agency additionally intended its “conforming” ame ndment to eviscerate the statutory fair hearing 21 right enjoyed by the millions of people na tionwide who are not enrolled in MCOs. 12 22

12 According to government statistics, as of July 2010, approximately 15.6 million people nationwide were enrolled in Medicaid, but were notenrolled in MCOs. See Centers for-29- In addition, we note that another regulation defines the term “enrollee” as encompassing 1 persons beyond those who are enrolled in MCOs. Part 1003 of Title 42 of the Code of Federal 2 Regulations in part provides for the imposition of civil money penaltie s against persons who 3 “[s]ubstantially fail to provide an enrollee with required medically necessary items and 4 services.” See 42 C.F.R. § 1003.100(b)(1)(vii) (emphasis added); see also id. 5 § 1003.103(f)(1)(i). For purposes of Part 1003, “enr ollee” is defined broadly as “an individual 6 who is eligible for . . . Medicaid and who enters into an agreement to receive services from a 7 contracting organization that cont racts with the Department under . . . title XIX of the Act.” 42 8 C.F.R. § 1003.101. 13 We fail to see why a similarly br oad definition of “enrollee” would not 9 apply in the context of the statut ory right at issue here. That right, after all, aims to help 10 individuals secure the provision of Medicaid-funded services to which they are entitled, just as 11 does Part 1003. 12 In light of the foregoing, we conclude that the regulation applies to all Medicaid 13 “enrollees.” The District Court’ s injunction thus is not overbro ad on the ground that it covers 14 such persons. And we note that Defendants do not di spute that the certified class consists only of 15 persons who, at a minimum, are Medicaid “enrollees.” 14 16

Medicare & Medicaid Services, Medicaid Managed Care Enrollment as of July 1, 2010 , available at https://www.cms.gov/Research-Statistics- Data-and-Systems/Computer-Data-andSystems/MedicaidDataSourcesGenI nfo/Downloads/2010July1.pdf.

13 The same regulation defines “contracting orga nization” as “a public or private entity . . . which has contracted with the Department or a State to furnish servic es to . . . Medicaid recipients.” 42 C.F.R. § 1003.101.

14 As noted, the District Co urt certified a class of all New York City applicants for, and recipients of, Medicaid-funded home health services, who have requ ested or will request fair hearings challenging adverse actions regarding their home health services and who are not solely challenging any decisi on regarding Medicaid eligibility, and-30- IV. Conclusion. 1 We have considered the parties’ remaining contentions, and find them to be moot or 2 without merit. 3 To summarize, we hold as follows: 4 (a) Section 1396a(a)(3) of Title 42 of the U.S. Code, as construed by 42 C.F.R. 5 § 431.244(f), creates a right—enf orceable under 42 U.S.C. § 1983—to have Medicaid fair 6 hearings held, and fair hearing decisions issue d, within the regulation’s specified time frame; 7 (b) The District Court’s injunction is ove rbroad because it compels Defendants to 8 implement the relief ordered in fair hearing deci sions within the regulati on’s 90-day time frame, 9 despite the fact that the regulation contemplates no such obligation. 10 On remand, the District Court must craft an orde r of injunctive relief consistent with this 11 opinion. 12 For the reasons stated above, the Order of the District Court is AFFIRMED in part and 13 VACATED in part, and the case is REMANDED for further proceedings. 14

who do not receive final administra tive action from Defendants within ninety days of their requ ests for fair hearings. 2011 Order at 2 ¶ 5.