Full opinion text
HULL, Circuit Judge: Plaintiff Anna “Callie” Moore (“Moore”) sued Defendant Clyde Reese, Commissioner of Georgia’s Department of Community Health (“DCH”), for allegedly violating the Medicaid Act (“the Act”) by reducing Moore’s Medicaid-funded private duty nursing care from 94 to 84 hours per week. The district court granted Moore’s motion for partial summary judgment and denied DCH’s cross-motion for summary judgment. This appeal concerns the extent to which a state Medicaid agency may review Moore’s treating physician’s determination of medical necessity under 42 U.S.C. § 1396d(r) of the Medicaid Act. After review and oral argument, we reverse and remand for further proceedings. I. FACTUAL BACKGROUND A. Moore’s Medical Conditions Plaintiff Callie Moore is a 16-year-old Medicaid recipient who is severely disabled. Due to a stroke suffered in útero, Moore developed numerous chronic conditions, including spastic quadriplegic cerebral palsy, refractory seizure disorder, mental retardation, gastroesophageal reflux disease, central apnea, cortical blindness, dysphagia, and restrictive lung disease. This complex and extensive combination of maladies requires that Moore receive continuous treatment, monitoring, and interventions by her caregivers and skilled nurses. Even with her medical conditions, Moore is enrolled part-time in school, where she receives special education services. At school, she practices using a communication device to interact with others, including school staff and “lunch buddies” from the student body. A nurse paid for by the school accompanies Moore on the school bus and at school. Outside of school, Moore is able to participate in a limited range of activities. For instance, with the accompaniment of her mother, Moore regularly attends church and sometimes visits the mall with a friend. B. Moore’s Nursing Requirements Beginning in 1998 when she was three years old, Moore has received Medicaid-funded private duty nursing services at home. To be eligible for these nursing services, Moore must “require more individual and continuous care than is available from a visiting nurse or routinely provided by the nursing staff of [a] hospital or skilled nursing facility.” 42 C.F.R. § 440.80. Since 2002, DCH has employed the Georgia Pediatric Program (“GAPP”) as its service-delivery model for providing nursing care in the home to medically fragile children with multiple systems diagnoses, such as Moore. As discussed later, Moore is a GAPP member, and DCH publishes a manual that sets forth the policies and procedures for GAPP, including the process for requesting and receiving private duty nursing hours. See Part II Policies and Procedures for the Georgia Pediatric Program (“GAPP Manual”). Dr. Charles L. Braucher, Jr. has treated Moore since she was an infant. He examines Moore approximately six to eight times a year. In a 2007 deposition, Dr. Braucher detailed the myriad duties Moore’s nurse or caregiver must perform, including, among other tasks: (1) monitoring her seizures to determine what medication is needed, (2) checking her oxygen levels, (3) assisting with gastric tube feedings, (4) administering a complex regimen of medications, and (5) repositioning her body approximately every two hours to prevent pressure sores. Dr. Braucher estimated that there was not a four-hour period in which Moore did not require the services of a skilled nurse or someone with comparable training and experience, such as Moore’s mother Pam. Although Moore suffers occasional health setbacks, her care and treatment needs have largely stabilized during the previous eight years. C. Dr. Braucher’s Weekly Nursing Hours Requests Over the years, Dr. Braucher, as the treating physician, has provided assessments of Moore’s weekly nursing requirements to DCH, along with its predecessors and contractors. Dr. Braucher files documentation, including a “Letter of Medical Necessity” detailing Moore’s diagnosis and care needs, with the Georgia Medical Care Foundation (“GMCF”). DCH retains GMCF as a third-party vendor of medical experts, including doctors and nurses. GMCF’s medical experts (“GMCF Medical Review Team”) examine whether GAPP members have met eligibility requirements, assess whether requested services are medically necessary, and determine the amount of services (here, the number of private duty nursing hours) that should be provided to qualifying GAPP members, also based on medical necessity. The GMCF Medical Review Team maintains and reviews the medical records of GAPP members. In Moore’s case, the medical records span a period of years. GMCF has no financial incentive to reduce the nursing hours it authorizes, nor does DCH influence or provide recommendations to GMCF. At various stages in Moore’s treatment, Dr. Braucher modified his nursing hours recommendations due to changes in Moore’s condition or other external circumstances. For instance, in 2002 Dr. Braucher requested additional nursing hours when Moore experienced severe diarrhea. In 2003, Dr. Braucher requested a reduction from 96 to 84 skilled nursing hours, with an additional 12 hours of care provided by a trainable certified nursing assistant in lieu of skilled nursing. Dr. Braucher’s change was prompted by his understanding that Georgia policy allowed Moore to be institutionalized if the care provided in the institution was less expensive than the same amount of home care. Between 2005 and 2006, however, the GMCF Medical Review Team regularly authorized 94 hours of private duty nursing care for Moore, based upon Dr. Braucher’s recommendations. Dr. Braucher explained the criteria used for his nursing hours recommendations. He estimates the total hours of care Moore requires and subtracts the hours of care her family can provide. In estimating the family hours, Dr. Braucher described how he factors in a caregiver’s work schedule, along with sleeping, shopping, and homemaking obligations. In October 2006, Dr. Braucher requested that Moore continue receiving 94 hours of nursing care per week. Dr. Braucher cited five problems requiring 94 nursing hours. Dr. Braucher noticed the first problem in 2001, when Moore began experiencing acute respiratory distress, erratic breathing patterns, and increased risk of airway obstructions and seizures. Since this respiratory problem has neurological roots, Moore’s pulmonologist recommended behavioral management to treat the problem, as opposed to more drastic measures. This requires nursing interventions when episodes occur. Second, Dr. Braucher cited Moore’s inability to move herself during sleep, which requires Moore to be repositioned during the night to prevent damage to skin integrity or obstruction of airways. The third problem surfaced in 2002, when Moore developed rotovirus gastroenteritis, necessitating multiple hospitalizations and nurses to monitor her hydration and quickly intervene. Fourth, Dr. Braucher noted that Moore’s seizures were increasingly difficult to manage and required constant monitoring. Fifth, Dr. Braucher explained that Moore suffered recurrent acute urinary retention, which necessitated frequent monitoring of her bladder size and occasional catheterization. D. GMCF Reduces Moore’s Nursing Hours in 2006 In November 2006, GMCF notified the Moores that, effective December 2006, Callie’s nursing care would be reduced from 94 to 84 hours per week. The GMCF Medical Review Team determined that now 84 hours, not 94 hours, were medically necessary to correct or ameliorate Moore’s medical condition. In its “Letter of Notification of Approved Skilled Nursing Hours,” GMCF cited four policies in the GAPP Manual to support its revised 84 hours allotment: Chapter 701: The cost analysis should be made to determine that the cost of caring for the member in the home & community is below cost of providing the same care in an institution. Chapter 702.2 part b. The Primary caregiver must assist with the member’s care in the home. Chapter 702.2 C. The availability and ability of caregiver(s) or significant other to actively participate in the care of the member. Chapter 702.2 E. The expectation that the primary caregiver(s) will become competent to assume some responsibility to care for the child. GAPP Medical Director Dr. Joseph M. Rosenfeld served on the GMCF Medical Review Team that assesses GAPP members’ medical necessities. Dr. Rosenfeld made the final decision to reduce Moore’s nursing care from 94 to 84 hours per week. In a 2007 deposition, Dr. Rosenfeld testified about his definition of medical necessity, explaining that it is “based upon the general accepted medical practices in the community” and can vary by regional expectations. Dr. Rosenfeld derived this standard from the GAPP Manual and from the factors typically considered by the GMCF Medical Review Team. Dr. Rosenfeld’s concept of medical necessity hinges on the medical well-being of the GAPP member, not the convenience of the GAPP member or health care provider. Lastly, Dr. Rosenfeld’s understanding of medical necessity is informed by his belief that “it should be the most effective or conservative way and cost less than hospitalizing the child.” This is consistent with the GAPP policies referenced in GMCF’s letter above: (1) “[t]he Primary caregiver must assist with the member’s care in the home” and (2) a “cost analysis should be made to determine that the cost of caring for the member in the home & community is below cost of providing the same care in an institution.” Dr. Rosenfeld discussed the factors he considers when determining what nursing hours are medically necessary. Dr. Rosenfeld does not apply a strict formula but considers various elements, including (1) the severity of a child’s condition, (2) how unstable they are, (3) what needs can be provided by family members, and (4) hospitalizations. Dr. Rosenfeld’s understanding is that GAPP was designed as a “weaning program based on the parents’ ability to care for the child.” Under GAPP’s model, primary and secondary caregivers are trained to care for the GAPP member and, over time, nursing hours are reduced “based upon the competency, [and] knowledge of the parents.” Dr. Rosenfeld justified his ten-hour reduction — 94 to 84 hours — in weekly nursing hours based on several considerations. First, Moore had not been hospitalized in the recent past, a factor he frequently takes into account when reducing nursing hours. Second, Dr. Rosenfeld concluded that many of the conditions that Dr. Braucher highlighted in his “Letter of Medical Necessity” would not be affected by a reduction in nursing hours. Specifically, Dr. Rosenfeld concluded that neither Moore’s gastroenteritis complications nor her acute urinary retention would be adversely impacted by the nursing reduction. Moore’s malabsorption difficulties posed a “potential problem,” but “not an actual problem.” Furthermore, Moore’s need to be repositioned while she slept was a “home healthcare issue” and did not require skilled nursing. Lastly, Dr. Rosenfeld’s decision to reduce Moore’s nursing hours was due to “her being relatively stable and the fact that her parents ... could be able to assume one hour and a couple of minutes of extra care per day since she had been on this many hours for a very long time.” Given the competency of Moore’s parents in her care, Dr. Rosenfeld determined the hours reduction would not endanger Moore’s welfare and “she would continue to basically receive the same type of care that she has received prior to that.” Dr. Rosenfeld characterized Moore’s conditions as “chronically stable,” a term he used to describe “children who are going to never get better who are ... very ill, but who are stable in the sense that ... the disease process is not getting worse, not getting better, and they’re not requiring hospitalizations, and they’re going to stay at this steady state for a long time.” When asked if he considered Moore’s mother’s needs when calculating medically necessary nursing hours, Dr. Rosenfeld commented that his GMCF Medical Review Team generally did not factor in a caregiver’s convenience: “We’re looking at strictly what is medically necessary for the care of the child. The only time we really take into consideration the caregivers is when it’s in a foster situation and the foster parent is really helping the state out.” When calculating medically necessary nursing hours, Dr. Rosenfeld takes into account a caregiver’s work schedule and sleeping needs, but not such activities as going to the grocery store or attending social functions. E. Moore Contests Nursing Hours Reduction Through her mother, Moore appealed GMCF’s reduction from 94 to 84 nursing hours. A hearing was scheduled before the Office of State Administrative Hearings. In a January 2007 letter sent to Moore’s mother prior to that hearing, DCH’s Legal Services Officer Cynthia Price explained that GAPP’s nursing services could be reduced “when the medical condition of the [GAPP] member stabilizes to give more of the responsibility of the care to the parent(s) and or caregiver(s).” Price cited the “Letter of Understanding” signed by Moore’s mother, which stated, “The GAPP program is designed to teach me on the care of my child’s medical condition. I understand that services may be reduced over time based on the medical needs of my child.” Price attached the “Caregiver Teaching Checklist,”, which indicated that Moore’s mother was competent in all areas of Moore’s care. Price’s letter concluded, “Based upon your child’s stable condition and your competency in her care, it appears that the reduction in hours is appropriate.” The day before the administrative hearing, Moore’s mother withdrew her hearing-request and filed this lawsuit. II. PROCEDURAL HISTORY A. Moore’s Complaint In March 2007, Moore’s mother, on behalf of her minor child, filed her original complaint under 42 U.S.C. § 1983, alleging violations of the Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) provision of the Medicaid Act. Plaintiff Moore moved for a temporary restraining order (“TRO”), which the district court granted. The TRO enjoined DCH from providing Moore with fewer than 94 hours of nursing care a week. When the TRO was slated to expire, Moore filed a motion for a preliminary injunction or, alternatively, to extend the TRO. In September 2007, the district court denied Moore’s motion because DCH represented that it would continue to provide 94 nursing hours during the pendency of Moore’s suit unless an emergency event required an increase in hours. B. District Court’s 2008 Summary Judgment Order In February 2008, DCH filed its motion for summary judgment as to the 84 hours allotment. Moore filed her cross-motion for partial summary judgment requesting 94 hours. In a June 2008 order, the district court denied DCH’s motion for summary judgment and granted Moore’s cross-motion in part. The district court commented that a 1989 Amendment to the Medicaid Act reflected Congress’s intent to expand health care coverage for Medicaid-eligible children by modifying the Act’s EPSDT provision. The EPSDT is Medicaid’s preventive child health program for individuals under the age of 21. See 44 Fed.Reg. 29420 (May 18, 1979). The district court determined that the 1989 Amendment “took away a state’s discretion not to provide necessary treatment for individuals under the age of twenty-one.” Moore v. Medows, 563 F.Supp.2d 1354, 1357 (N.D.Ga.2008). The district court concluded that “[t]he state must provide for the amount of skilled nursing care which the Plaintiffs treating physician deems necessary to correct or ameliorate her condition. The Defendant may not deny or reduce the hours of skilled nursing care that is medically necessary based upon cost or the lack of a secondary caregiver.” Id. The district court effectively deemed the treating physician’s opinion of medical necessity dis-positive and concluded that DCH had no discretion due to the 1989 Amendment. Accordingly, the district court ruled that Moore was entitled to declaratory and injunctive relief as to DCH’s reduction to 84 nursing hours. DCH appealed. C. DCH’s First Appeal in 2009 In April 2009, this Court reversed and remanded. Moore v. Medows, 324 Fed. Appx. 773 (11th Cir.2009) (per curiam) (unpublished) {“Moore /”). A prior panel of this Court agreed that DCH was required to provide Moore with any medically necessary treatment or services but disagreed with the district court’s ruling that the treating physician was the sole arbiter of medical necessity. The panel’s two-paragraph opinion concluded that (1) the state is not “wholly excluded from the process of determining what treatment is necessary”; (2) “both the state and Moore’s physician have roles in determining what medical measures are necessary to ‘correct or ameliorate’ Moore’s medical conditions”; and (3) “[a] private physician’s word on medical necessity is not dispositive.” Id. at 774. Beyond declaring that the state was not excluded, the treating physician’s opinion was not dispositive, and both actors play roles in determining medical necessity, the Moore I decision did not address what happens when there are conflicting opinions about medical necessity by the treating physician and the state’s medical expert. Moore I did not at all elucidate the respective roles of a treating physician and the state, or how to reconcile a treating physician’s role vis-a-vis the state’s oversight function. However, Moore I did cite our precedent in Rush v. Parham, 625 F.2d 1150 (5th Cir.1980), which we discuss later. D. District Court’s 2009 Order on Remand After supplemental briefing on remand, the district court once again denied Defendant DCH’s motion for summary judgment and granted Plaintiff Moore’s cross-motion for partial summary judgment. Moore v. Medows, 674 F.Supp.2d 1366 (N.D.Ga.2009) (“Moore II”). On remand, DCH asserted that, in light of the Eleventh Circuit’s ruling in Moore I, “one can conclude that the state is the final arbiter of medical necessity.” DCH argued that the state “has the authority and discretion to determine medical necessity as well as to determine the amount, scope, and duration of services paid for and provided by Medicaid in accordance with EPSDT.” The district court rejected DCH’s position and agreed with Moore that the state had only a limited role. The district court held that the state could review a treating physician’s determination of medically necessary services only for (1) fraud or abuse of the Medicaid system, and (2) whether the services are within the reasonable standards of medical care. Id. at 1370. The district court quoted Rush v. Par-ham’ s approving citation of the 1965 Senate Finance Committee Report on the Medicaid Act, which stated that “[t]he physician is to be the key figure in determining utilization of health services.” Id. at 1369 (quoting Rush, 625 F.2d at 1157). The district court also cited Pittman ex rel. Pope v. Secretary, Florida Department of Health & Rehabilitative Services, 998 F.2d 887 (11th Cir.1993) (per curiam), to support the proposition that DCH’s discretionary role was strictly cabined by § 1396d(r)(5). The district court then found that DCH raised no issue of fraud or abuse of the Medicaid system by the Moores or the treating physician, Dr. Braueher. Moore II, 674 F.Supp.2d at 1371. The district court noted that there was no genuine issue of material fact regarding whether Dr. Braucher’s 94-hours nursing recommendation was based in fact, since his assessment was derived from 12 years of evaluating the patient and was supported by the medical records. Id. The district court again entered injunctive and declaratory relief for Moore. Id. DCH appealed again. III. STANDARD OF REVIEW We review de novo the district court’s denial of DCH’s summary judgment motion and grant of Moore’s partial summary judgment motion, viewing the facts and drawing all reasonable inferences in favor of the nonmoving party. Rosario v. Am. Corrective Counseling Servs., Inc., 506 F.3d 1039, 1043 (11th Cir.2007). Summary judgment is appropriate when “there is no genuine dispute as to any material fact” and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a). A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). IV. DISCUSSION As necessary background, we first review the Medicaid Act, the 1989 Amendment, and relevant regulations and manuals. A. Medicaid Act and Regulations In 1965, Congress enacted the Medicaid Act, 42 U.S.C. § 1396 et seq., as Title XIX of the Social Security Act. Medicaid is a jointly financed federal-state cooperative program, designed to help states furnish medical treatment to their needy citizens. States devise and fund their own medical assistance programs, subject to the requirements of the Medicaid Act, and the federal government provides partial reimbursement. See 42 U.S.C. §§ 1396b(a), 1396d(b). A state’s participation in the Medicaid program is voluntary, but once a state opts to participate it must comply with federal statutory and regulatory requirements. See Alexander v. Choate, 469 U.S. 287, 289 n. 1, 105 S.Ct. 712, 714 n. 1, 83 L.Ed.2d 661 (1985). All states, including Georgia, have chosen to participate in Medicaid. The Medicaid Act, as supplemented by regulations promulgated by the Department of Health and Human Services (“HHS”), “prescribes substantive requirements governing the scope of each state’s program.” Curtis v. Taylor, 625 F.2d 645, 649 (5th Cir.1980). Section 1396a provides that a “State plan for medical assistance” must meet various guidelines, including the provision of certain categories of care and services. See 42 U.S.C. § 1396a. Some of these categories are discretionary, while others are mandatory for participating states. Id. § 1396a(a)(10) (listing mandatory categories). Section 1396a(a)(17) provides that “[a] State plan for medical assistance 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 [Title].” Id. § 1396a(a)(17). The Medicaid Act also requires that state plans “provide such safeguards as may be necessary to assure that eligibility for care and services under the plan will be determined, and such care and services will be provided, in a manner consistent with simplicity of administration and the best interests of the recipients.” Id. § 1396a(a)(19). Although the standard of “medical necessity” is not explicitly denoted in the Medicaid Act, it has become a judicially accepted component of the federal legislative scheme. See, e.g., Beal v. Doe, 432 U.S. 438, 444, 97 S.Ct. 2366, 2371, 53 L.Ed.2d 464 (1977) (indicating that “serious statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage”); Murray v. Auslander, 244 F.3d 807, 809 n. 2 (11th Cir.2001) (“Federal law allows Medicaid plans to apply a ‘medical necessity’ test to all applicants.”); Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1268 (11th Cir. 2000) (indicating that the Medicaid Act allows states “to apply a ‘medical necessity’ test to all applicants to ensure that applicants receive medical services in order of need”); Curtis, 625 F.2d at 652 (concluding that participating states may limit required Medicaid services “in a manner based upon a judgment of degree of medical necessity so long as it does not discriminate on the basis of the kind of medical condition that occasions the need”); Pinneke v. Preisser, 623 F.2d 546, 548 n. 2 (8th Cir.1980) (observing that the “standard of medical necessity is not explicit in the [Medicaid] statute, but has become judicially accepted as implicit to the legislative scheme and is apparently endorsed by the Supreme Court” (citing Beal, 432 U.S. at 444-45 & n. 9, 97 S.Ct. at 2370-71 & n. 9)); see also 42 C.F.R. § 440.230(d) (providing that state Medicaid agencies “may place appropriate limits on a service based on such criteria as medical necessity”). Accordingly, even if a category of medical services or treatments is mandatory under the Medicaid Act, participating states must provide those medical services or treatments for Medicaid recipients only if they are “medically necessary.” B. 1989 Amendment and EPSDT Program In 1989, Congress amended the Medicaid Act to broaden the categories of services that participating states must provide to Medicaid-eligible children. The 1989 Amendment mandates that participating states provide EPSDT services to all Medicaid-eligible persons under the age of 21. Omnibus Budget Reconciliation Act of 1989, Pub.L. No. 101-239, § 6403, 103 Stat. 2106, 2262-64; 42 U.S.C. § 1396d(a)(4)(B), (r). The goal of the EPSDT program is to provide low-income children with comprehensive health care. The EPSDT program, codified at 42 U.S.C. § 1396d(r), mandates four specific categories of services: screening, vision, dental, and hearing services. 42 U.S.C. § 1396d(r)(l)-(4). Additionally, the catch-all EPSDT provision in § 1396d(r)(5), which is the focus of this appeal, mandates that participating states provide to Medicaid-eligible children “[s]ueh other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.” Id. § 1396d(r)(5) (emphasis added). In other words, in addition to the four categories of services listed above, a state’s mandatory EPSDT obligations to Medicaid-eligible children under § 1396d(r)(5) include “health care, diagnostic services, treatment, and other measures” that are (1) outlined in § 1396d(a) and (2) “necessary ... to correct or ameliorate ... conditions discovered by the screening services,” (3) regardless of whether a state plan provides such services to adults. Id. As to Medicaid-eligible children, § 1396d(r)(5) requires that participating states must “cover every type of health care or service necessary for EPSDT corrective or ameliorative purposes that is allowable under § 1396d(a).” S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 590 (5th Cir.2004); see also Katie A. ex rel. Ludin v. Los Angeles Cnty., 481 F.3d 1150, 1154 (9th Cir.2007) (quoting same); Collins v. Hamilton, 349 F.3d 371 (7th Cir. 2003); Pediatric Specialty Care, Inc. v. Ark. Dep’t of Human Servs., 293 F.3d 472 (8th Cir.2002); Pereira ex rel. Pereira v. Kozlowski, 996 F.2d 723 (4th Cir.1993). In turn, § 1396d(a)(l)-(29) enumerates 29 categories of care and services defined as “medical assistance,” including “private duty nursing services” in § 1396d(a)(8). 42 U.S.C. § 1396d(a)(8). Section 1396a(a)(10) lists only eight of the categories listed in § 1396d(a) as mandatory for participating states to provide Medicaid-eligible adults. See 42 U.S.C. § 1396a(a)(10)(A) (providing that states must supply “at least the care and services listed in paragraphs (1) through (5), (17), (21), and (28) of section 1396d(a)”). The 1989 Amendment, however, made it incumbent upon states to provide all 29 categories of care, including “private duty nursing services,” to Medicaid-eligible children who qualify under the EPSDT provision. Although eliminating a state’s discretion over the categories of medical services and treatment that must be provided to children, the 1989 Amendment did not change the “medical necessity” limitation on such Medicaid-required services and treatment. To clarify the contours of the “private duty nursing services” mentioned in § 1396d(a)(8), a federal regulation provides that “[pjrivate duty nursing services means nursing services for recipients who require more individual and continuous care than is available from a visiting nurse or routinely provided by the nursing staff of the hospital or skilled nursing facility.” 42 C.F.R. § 440.80. That federal regulation specifies that the state has the option to provide the required private duty nursing services in a home, hospital, or skilled nursing facility: These services are provided— (a) By a registered nurse or a licensed practical nurse; (b) Under the direction of the recipient’s physician; and (c) To a recipient in one or more of the following locations at the option of the State— (1) His or her own home; (2) A hospital; or (3) A skilled nursing facility. Id. In addition, another federal regulation provides that each service in the state plan “must be sufficient in amount, duration, and scope to reasonably achieve its purpose” and that the state Medicaid agency “may place appropriate limits on a service based on ... medical necessity”: (a) The plan must specify the amount, duration, and scope of each service that it provides for— (1) The categorically needy; and (2) Each covered group of medically needy. (b) Each service must be sufficient in amount, duration, and scope to reasonably achieve its purpose. (c) The Medicaid agency may not arbitrarily deny or reduce the amount, duration, or scope of a required service under §§ 440.210 and 440.220 to an otherwise eligible recipient solely because of the diagnosis, type of illness, or condition. (d) The agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures, Id. § 440.230 (emphasis added). Given the above statutes, regulations, and precedents, read in conjunction with the record, we readily conclude that (1) under § 1396d(r)(5), DCH is required to provide all medical services and treatment “necessary ... to correct or ameliorate” Moore’s conditions; (2) Moore meets the criteria for “private duty nursing services” under § 440.80, and such services are medically necessary for Moore; and (3) under § 440.230(b) and (d), DCH must provide private duty nursing care to Moore that is “sufficient in amount, duration, and scope to reasonably achieve its purpose,” but “may place appropriate limits on a service based on such criteria as medical necessity.” In addition, Moore I tells us that the treating physician and the state both have roles to play in determining medical necessity, and the treating physician’s opinion is not dispositive. Moore I, 324 Fed.Appx. at 774. The parties largely do not dispute these starting points. Rather, the hotly disputed issues here concern what amount of private duty nursing hours the state must provide to Moore under the Medicaid Act, the parameters of the roles played by the treating physician and the state Medicaid agency in making that determination, and what happens when Moore’s treating physician and the state’s medical expert disagree about what amount of nursing hours are medically necessary. Although mandating several categories of medical services for children, the Medicaid Act, and specifically the 1989 Amendment, do not address what happens when the medical experts agree that a type or category of medical service is medically necessary for an individual child but disagree as to the amount or duration of the service, such as the private duty nursing hours here. To resolve these issues, the parties primarily cite and discuss a federal Medicaid manual and a state health services manual, along with some of our court precedents. We review them below. C. CMS Manual The Centers for Medicare and Medicaid Services (“CMS”), a federal agency within HHS, is charged with administering the Medicaid Act. Among other things, CMS sets forth guidelines for participating states to follow in their Medicaid programs and monitors state agency compliance with Medicaid requirements. See Emerald Shores Health Care Assocs. v. U.S. Dep’t Health & Human Servs., 545 F.3d 1292, 1293 (11th Cir.2008). CMS is required to determine that each state plan is in conformity with the specific requirements of the EPSDT mandate in the Medicaid Act. See Hood, 391 F.3d at 596 (citing 42 U.S.C. § 1396a(b) and 42 C.F.R. §§ 430.10, 430.15). To facilitate this objective, the federal CMS publishes the State Medicaid Manual to direct participating states in their implementation of Medicaid requirements, including the EPSDT mandate in the Medicaid Act. See CMS, U.S. Dep’t of Health & Human Servs., Pub. No. 45, State Medicaid Manual (“CMS Manual”). In the chapter devoted to EPSDT services, the CMS Manual describes the EPSDT mandate of the Medicaid Act as “a comprehensive child health program of prevention and treatment” designed to “[ajssure that health problems found are diagnosed and treated early, before they become more complex and their treatment more costly.” Id. § 5110(B). In the subsection entitled “Limitation of Services,” the CMS Manual advises participating states, in language tracking § 1396d(r)(5), that they make the determination as to whether a Medicaid-required service is medically necessary: [EPSDT] services must be “necessary ... to correct or ameliorate defects and physical or mental illnesses or conditions ...” and the defects, illnesses and conditions must have been discovered or shown to have increased in severity by the screening services. You make the determination as to whether the service is necessary. You are not required to provide any items or services which you determine are not safe and effective or which are considered experimental. Id. § 5122(F) (emphasis added). The CMS Manual also instructs the states that 42 C.F.R. § 440.230 allows the state Medicaid agency “to establish the amount, duration and scope of services provided under the EPSDT benefit” so long as (1) any limitations imposed are reasonable; (2) the EPSDT service is sufficient to achieve its purpose; and (3) the state’s definition of the service comports with the statutory requirement that the state provide all services “that are medically necessary to ameliorate or correct ... conditions discovered by the screening services”: lt.2 CFR ^0.230 allows you to establish the amount, duration and scope of services provided under the EPSDT benefit. Any limitations imposed must be reasonable and services must be sufficient to achieve their purpose (within the context of serving the needs of individuals under age 21). You may define the service as long as the definition comports with the requirements of the statute in that all services included in § 1905(a) of the Act [42 U.S.C. § 1396d(a)] that are medically necessary to ameliorate or correct defects and physical or mental illnesses and conditions discovered by the screening services are provided. Id. (emphasis and brackets added); see also Hood, 391 F.3d at 591 (indicating that “under the CMS interpretation, a state Medicaid agency may regulate the amount, duration and scope of medical assistance provided, but its regulation must comply with the statutory requirement that all health care and services described in § 1396d(a) that are necessary to the corrective and ameliorative purposes of the EPSDT program must be provided”). While emphasizing the need for state Medicaid agencies to fulfill their EPSDT obligations, the CMS Manual underscores the need for the state agency to avoid “unnecessary services”: Although “case management” does not appear in the statutory provisions pertaining to the EPSDT benefit, the concept has been recognized as a means of increasing program efficiency and effectiveness by assuring that needed services are provided timely and efficiently, and that duplicated and unnecessary services are avoided. CMS Manual § 5010(B); see also 42 U.S.C. § 1396a(a)(30)(A) (requiring State Medicaid plans to “provide such methods and procedures relating to the utilization of, and the payment for, care and services available under 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”). In addition to the CMS Manual, the federal HHS or its sub-agencies periodically advise participating states of their EPSDT obligations. In this regard, a 1993 letter from the Acting Director of the federal Medicaid Bureau to State Medicaid Directors apprised states of their EPSDT obligations in the wake of the 1989 Amendment. See Letter from Rozann Abato, Acting Director, Medicaid Bureau, Health Care Financing Administration, to State Medicaid Directors (May 26, 1993) (Exhibit A to Amicus Curiae Brief for Atlanta Legal Aid Society, Inc.). In this 1993 letter, the Medicaid Bureau’s Acting Director expressed concern that “some States may not be fully aware of the flexibility which States may exercise in administering the [EPSDT] benefit under Medicaid.” Id. The letter reiterated that the 1989 Amendment “did not take away a State’s authority to use medical necessity or utilization controls to manage the State’s Medicaid program.” Id. The letter clarified that “States may place tentative limits on EPSDT services,” noting by way of illustration that “a State may limit physical therapy services to 10 sessions for each Medicaid recipient” so long as “additional sessions are available to EPSDT recipients, if they are determined by the State to be medically necessary.” Id. (second emphasis added). The letter explained that “a State may exclude any item or service that it determines is not medically necessary, is unsafe or experimental, or is not generally recognized as an accepted method of medical practice or treatment.” Id. The 1993 Medicaid Bureau letter also stated that “[a] State may choose to provide medically necessary services in the most economic mode, as long as the treatment made available is similarly efficacious, the determination process does not delay the delivery of the needed service and the determination does not, in essence, limit the recipient’s right to a free choice of providers.” Id. (citing 42 U.S.C. § 1396a(a)(30)(A)) (emphasis omitted). The letter listed “a system of prior approval of selected types of costly health care” as one method by which a state could “assure that services are furnished in a cost-effective manner.” Id. The letter identified the objective of this prior authorization system: The goal of prior authorization is to assure that the care and services proposed to be provided are actually needed, that all equally effective, less expensive alternatives have been given consideration and that the proposed service and materials conform to commonly accepted standards. For example, a State would not be required to provide an air-fluidized bed if it determines that a less costly egg-crate mattress will serve the same medical needs. Id. Lastly, the state Medicaid agency “is not required to furnish the service through every setting or provider type,” so long as it can “demonstrate sufficient access” to an EPSDT-required service. Id. Having reviewed CMS’s interpretation of a state’s EPSDT obligations, we next examine Georgia’s efforts to satisfy the EPSDT mandate. D. Georgia’s EPSDT Mandate and Its GAPP Manual In Georgia, Defendant DCH is the single state agency tasked with administering the Medicaid program. See 42 U.S.C. § 1396a(a)(5); O.C.G.A. § 49-4-142. Each participating state must create its own administrative rules and regulations for operating the Medicaid program in that state. Alacare, Inc.-North v. Baggiano, 785 F.2d 963, 964 (11th Cir.1986). While states must meet the substantive requirements of the federal Medicaid Act, they nonetheless retain discretion to design and administer their Medicaid programs. See Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health & Rehabilitative Servs., 225 F.Sd 1208, 1211 (11th Cir.2000) (commenting that participating states are “granted broad latitude in defining the scope of covered services as well as many other key characteristics of their [Medicaid] programs”). That same flexibility extends to the EPSDT mandate. See Katie A., 481 F.3d at 1159 (“While the states must live up to their obligations to provide all EPSDT services, the statute and regulations afford them discretion as to how to do so.”); see also Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 439, 124 S.Ct. 899, 904-05, 157 L.Ed.2d 855 (2004) (noting that consent decree at issue represented one choice among “various ways that a State could implement the Medicaid Act” to comply with the “general EPSDT statute”). While the EPSDT mandate requires Georgia’s DCH to provide children, who meet the eligibility requirements, with medically necessary “private duty nursing services” to “correct or ameliorate” their conditions, 42 U.S.C. § 1396d(a)(4)(B), (a)(8) & (r)(5), 42 C.F.R. § 440.80, the Medicaid Act does not set forth a uniform manner in which states must implement that EPSDT mandate. We thus examine the particular service-delivery model, and standards therein, that DCH has adopted and implemented to satisfy its EPSDT mandate. As an alternative to institutionalizing Moore and providing private duty nursing services in a hospital or skilled nursing facility, pursuant to 42 C.F.R. § 440.80(c), DCH employs the Georgia Pediatric Program (referred to earlier as “GAPP”) as a service-delivery model to provide private duty nursing care in a member’s own home setting. Specifically, the GAPP model provides private duty nursing services “to medically fragile children in their homes and communities and in a ‘medical’ daycare setting as an alternative to placing children in a nursing care facility.” GAPP Manual § 601. Many children who enroll in GAPP are directly discharged from a hospital setting to begin receiving private duty nursing care in the home. Miriam Henderson, a registered nurse and program specialist for GAPP, testified in a deposition that a majority of new GAPP members are direct admissions from hospitals. in addition, DCH, through its “Division of Medical Assistance,” publishes a manual entitled “Part II Policies and Procedures for the Georgia Pediatric Program” (referred to earlier as the “GAPP Manual”). The GAPP Manual lists the following five goals for its member services, including the private duty nursing program: 1. To provide continuous skilled nursing care to medically fragile children under the age of twenty years 11 months. The children’s medical condition must require skilled nursing care equivalent to the care received in an institutional setting, i.e., hospital or skilled nursing facility. The caregivers must be knowl edgeable and competent in the care of the child. When deemed appropriate by the GMCF Medical Review Team, skilled nursing hours may be reduced. 2. To provide quality services, consistent with the needs of the individual child. All services requested must be accompanied by a physician’s order. 3. To provide cost effective services to eligible members in the home environment. 4. To involve the physician and child’s caregiver(s) or representative(s) in the provision of the child’s care. 5. To demonstrate compassion for the members by treating the children and caregivers with dignity and respect while providing quality services in the home or daycare setting. Id. § 601.1(l)-(5) (emphasis added). Consistent with these goals, the GAPP Manual sets forth certain requirements that a GAPP member must meet to qualify for private duty nursing services in a home setting, including: (1) “[m]embers must be medically fragile with multiple systems diagnoses and require continuous skilled nursing care,” id. § 601; (2) members must “meet the same level of care for admission to a hospital or nursing facility and must be Medicaid eligible,” id.; (3) there must be a primary and secondary caregiver available, id. §§ 702.2(C), 801.2; (4) “[t]he caregivers must be knowledgeable and competent in the care of the child,” id. § 601.1(1), and “[t]he primary caregiver must assist with the member’s care in the home and must frequently communicate with the staff in the medical day care facility,” id. § 702.2(B) (emphasis omitted); (5) a “cost analysis should be made to determine that the cost of caring for the member in the home and community is below the cost of providing the same care in an institution,” id. § 701; and (6) the GAPP member must not require 16 or more hours of daily nursing care for a period greater than one week, id. § 905(d). Thus, DCH conditions a GAPP member’s receipt of private duty nursing services in the home (as an alternative to an institutional setting) on the presence of a caregiver in the home and the expectation that the primary caregiver will assist with the member’s care in the home. Id. § 702.2(E). The GAPP Manual contemplates roles for both the treating physician and the state in making private duty nursing hours authorizations, stating: “The primary care physician develops the child’s initial plan of care. The GHP (GMCF Medical Review Team) determines the level of care, reviews prior approvals, determines the appropriateness of services, and makes approval or denial determinations.” Id. § 601.2(C). The GMCF Medical Review Team determines the number of nursing hours by assessing the medical needs of GAPP recipients, the training needs of their caregivers, and the treating physicians’ orders. Id. § 702.2(D). When GMCF authorizes private duty nursing hours, “[approvals are granted on a time-limited period not to exceed three (3) months.” Id. § 801.1. In other words, GAPP members must reapply at least every three months in order to retain nursing care. Meanwhile, “[rjeauthorization requests are due thirty (30) days prior to the expiration of the existing approval period to ensure that there will be no interruption in services.” Id. § 801.3. A prospective GAPP member must file various documents when applying for nursing hours, many of which are periodically updated and resubmitted so that the GMCF Medical Review Team can assess a GAPP member’s changing medical needs. These documents include a “DMA-6 A” form (the “Physician’s Recommendation for Pediatric Care”) and a “DMA-80” form (the “Prior Authorization Request Form”), which are filed early in the process. Id. § 801.2; see also id. apps. E, F. Meanwhile, the treating physician submits a “Letter of Medical Necessity” with each nursing hours reauthorization request and must include: [A] detailed Medical history — including related medical conditions, hospitalizations and medical course, explanation of medical necessity for nursing, oxygen/ventilator settings and hours of use per day, recommended nursing hours and weaning schedule, estimated duration of services, present and/or future readiness for medically fragile daycare and medical plan of treatment — including all medications, therapies and treatments, etc. Id. § 801.2; see also id. app. J. A GAPP member or the member’s representative must sign a “Freedom of Choice” form, which indicates their informed consent to enroll in GAPP and choose among various service options. Id. § 801.2; see also id. app. H. The Freedom of Choice form states that “[o]nce a member is determined to be likely to require the level of care provided in a nursing facility or hospital, the member and his/her authorized representative will be ... given the choice of either ... institutional or home and community-based services.” Id. app. H. DCH also requires that members submit the “GAPP Assessment Form,” signed by each planning team member (including the primary and secondary caregivers, treating physician and physician specialist, and nursing provider). Id. § 801.2; see also id. app. K. This document includes information on medical history, diagnosis, medication regimen, respiratory care information, caregiver competency and work schedules, school requirements, and nursing needs. Id. app. K. Additionally, DCH requires a prospective GAPP member’s primary caregiver to sign a “Letter of Understanding” indicating acknowledgment and acceptance of GAPP policies. Id. § 801.2; see also id. app. L. By signing this form, the primary caregiver warrants, among other attestations, that (1) “[t]his GAPP program is designed to teach me on the care of my child’s medical condition. I also understand that services may be reduced over time based on the medical needs of my child the (member)” and (2) “[t]he primary caregiver must be available and able to learn to participate in my child’s (the member’s) care.” Id. app. L. With respect to both the treating physician’s initial recommendation of nursing hours and the GMCF Medical Review Team’s final authorization of nursing hours, the GAPP Manual mandates that the nursing hours be medically necessary, stating: “The need for services is based on medical necessity, taking into consideration the overall medical condition of the member, the equipment and the level and frequency of care required for the member.” Id. § 702.2(A); see also id. § 801.2 (“Services will only be approved based on medical necessity and treatment needs of the member.”); id. § 905(g) (excluding “[sjervices for back up support or respite purposes for the primary or secondary caregiver”). The GAPP Manual describes GAPP as a “teaching program” in the home that is intended to shift some responsibility to the child’s caregiver incrementally, as the caregiver acquires the necessary training and skills. Id. § 803(c). If the medical condition of a GAPP member stabilizes, the GAPP Manual states that skilled nursing hours in the home may be reduced over time: Skilled nursing care services may be reduced when the medical condition of the member stabilizes to give more of the responsibility of the care of the member to the parent(s) and or caregivers). One of the goals of the Georgia Pediatric Program is to teach the parents and caregivers how to care for the member in the absence of a nurse. The Georgia Pediatric Program (GAPP) is not intended to be a permanent solution to skilled care. It is a teaching program. Id. (emphasis added). The GAPP Manual apprises members of their right to appeal a reduction in services and outlines the administrative review process. Id. §§ 805(b), 805.1. First, the GMCF Medical Review Team notifies the GAPP member of any reduction in nursing hours in its “Initial Letter of Notification.'^’ Id. § 805.1. Parents of GAPP members may request an administrative review of the hours reduction within ten days of this “Initial Letter of Notification.” Id. If no such request is made, or if the parent fails to supply additional documentation to be used in reviewing the appropriateness of the hours reduction, the denial will become final ten days after the date of the “Initial Letter of Notification.” Id. Within 30 days of the “Final Letter of Notification,” parents may request a hearing before an administrative law judge. Id. Any party dissatisfied with the administrative law judge’s decision retains appeal rights. Id. Having discussed Medicaid’s EPSDT requirements and GAPP’s private duty nursing program, we turn to the relevant court precedents. E. Court Precedents Several cases shed some light on the respective roles played by the treating physician and the state under the Medicaid Act and related regulations. While these cases do not answer the precise issue here, they, read together, provide guiding principles. 1. Beal v. Doe In 1977, the Supreme Court in Beal v. Doe confronted whether the Medicaid Act required participating states to fund nontherapeutic abortions. 432 U.S. at 440, 97 S.Ct. at 2368. Pennsylvania’s Medicaid plan provided state funding only for abortions certified as medically necessary by physicians. Id. at 441, 97 S.Ct. at 2369. The plaintiffs did not provide physician certifications, and Pennsylvania denied them Medicaid funding. Id. at 441-42, 97 S.Ct. at 2369. Plaintiffs’ lawsuit alleged that Pennsylvania’s requirement of a medical necessity certificate violated the Medicaid Act and the Equal Protection Clause. Id. at 441-42, 97 S.Ct. at 2369-70. In Beal, the Supreme Court rejected the plaintiffs’ contention that “participating States are required to fund every medical procedure that falls within the [Medicaid Act’s] delineated categories of medical care.” Id. at 444, 97 S.Ct. at 2370. The Beal majority noted that § 1396a(a)(17) of the Medicaid Act provides that “[a] State plan for medical assistance 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 [Title].” Id. at 444, 97 S.Ct. at 2370-71 (quoting 42 U.S.C. § 1396a(a)(17)) (alterations in original). The majority explained that “[t]his language confers broad discretion on the States to adopt standards for determining the extent of medical assistance, requiring only that such standards be ‘reasonable’ and ‘consistent with the objectives’ of the [Medicaid] Act.” Id. at 444, 97 S.Ct. at 2371. The Beal majority concluded that Pennsylvania’s Medicaid program was consonant with the Medicaid Act’s objective of providing medically necessary services to low-income individuals. The majority instructed, “Although serious statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage, it is hardly inconsistent with the objectives of the Act for a State to refuse to fund unnecessary — though perhaps desirable — medical services.” Id. at 444^5, 97 S.Ct. at 2371. Thus, state Medicaid funding of nontherapeutic abortions was permissible, but not mandatory. The Beal Court noted that HEW — HHS’s precursor — supported this position and stated, “[W]e must be mindful that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.” Id. at 447, 97 S.Ct. at 2372 (quoting N.Y. Dep’t of Soc. Servs. v. Dublino, 413 U.S. 405, 421, 93 S.Ct. 2507, 2516-17, 37 L.Ed.2d 688 (1973)) (internal quotation marks omitted). The Beal majority rejected the plaintiffs’ argument that Pennsylvania’s Medicaid plan trenches on a physician’s medical judgment because the plan paid for abortions only if the physician certified the abortion was medically necessary. Id. at 445 n. 9, 97 S.Ct. at 2371 n. 9. Thus, the Supreme Court upheld Pennsylvania’s requirement of a medical necessity certification before covering an abortion. The Beal Court opted not to pass upon the portion of Pennsylvania’s plan that posed a potential interference with the treating physician’s medical judgment, however. From Beal, we learn that (1) a participating state is not required to fund desirable but medically unnecessary services requested by a Medicaid recipient’s physician and (2) the Medicaid Act endows participating states with broad discretion to fashion standards for determining the extent of medical assistance, so long as such standards are reasonable and congruous with the purposes of the Act. 2. Curtis v. Taylor In 1980, three years after Beal, our predecessor Court decided Curtis v. Taylor. In Curtis, plaintiffs filed a class action on behalf of all Florida Medicaid recipients against the Secretary of the Florida Department of Health and Rehabilitative Services for alleged constitutional and statutory violations arising from Florida’s Medicaid plan. 625 F.2d at 647, 649. The Curtis plaintiffs challenged a modification of Florida’s Medicaid program that limited Medicaid recipients to three doctor visits per month, excluding emergencies — a change precipitated by Florida’s projected Medicaid deficit. Id. at 647. Like EPSDT services, physicians’ services are a mandatory category of medical assistance that the Medicaid Act requires all state plans to fund. 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(5). The district court enjoined Florida from implementing this Medicaid limitation. Curtis, 625 F.2d at 647. On appeal, our predecessor Court in Curtis construed and applied 42 C.F.R. § 440.230(b), the federal Medicaid regulation requiring that “[e]ach service must be sufficient in amount, duration, and scope to reasonably achieve its purpose.” 42 C.F.R. § 440.230(b). In analyzing whether Florida had discharged its Medicaid Act duties under § 440.230(b), the Curtis Court explained that the question hinged “on whether the state may place limits on the amount of physicians’ services available to a recipient, even though those limits may result in a denial of some medically necessary treatment, if most recipients do not need treatment beyond that provided.” 625 F.2d at 651. The Curtis Court answered this question in the affirmative and reversed the district court, stating, “[w]e hold that the state’s payment for physicians’ services was sufficient to ‘reasonably achieve’ the purpose of such care even though limited to three visits per month.” Id. at 647. In reaching this conclusion, the Curtis Court pointed to factors buttressing Florida’s argument. First, the trial court record reflected that the vast majority of Medicaid recipients did not require more than three physician visits in any month. Id. at 651. In a footnote, the Curtis Court noted that “[t]he state may place appropriate limits on a service based on medical necessity. The state does not, however, contend that the three-visit limit is based on the lack of medical necessity of treatment for any individual. Indeed it could not. The plaintiffs include several persons with a documented need for more than three visits per month.” Id. at 651 n. 11. In other words, the Curtis Court rejected the plaintiffs’ contention that Florida’s plan violated the Medicaid Act, despite acknowledging that it was medically necessary for the plaintiffs as individuals to receive more than three doctor visits per month. The Curtis Court thus dismissed the plaintiffs’ arguments that (1) “the sufficiency of the service provided must be determined with regard to each individual who receives medical services” and (2) “if only a handful out of thousands needs to see a doctor more than three times a month, the limitation defeats the regulatory requirement.” Id. at 651. The Curtis Court explained that if the plaintiffs’ contention were accepted, it “would preclude any limitation on any medically necessary service,” and Florida’s Medicaid agency would be obligated to pay for “thirty visits per month if any Medicaid recipient needed such services or hospital stays of indefinite duration.” Id. Second, the Curtis Court noted that at least 17 states presently limited the frequency of physician visits, with the apparent approval of the federal HEW. Id. The Curtis Court further relied upon HEW publications suggesting that HEW interpreted § 440.230(b) as authorizing such Medicaid limitations and declared that “[w]hen the meaning of an agency’s regulation is not clear, deference should be given to the interpretation adopted by the agency that promulgated the regulation and administers the statute.” Id. at 652-53 (citing Dublino, 413 U.S. at 421, 93 S.Ct. at 2516). Third, the Curtis Court distinguished its doctor visitation case from other cases in which state Medicaid plans had limited payments for certain types of diagnoses and medical conditions. Id. at 651-52 (citing White v. Beal, 555 F.2d 1146 (3d Cir. 1977) (invalidating Pennsylvania plan providing eyeglasses to Medicaid recipients suffering eye disease but not those suffering non-pathologieal eye conditions); Preterm, Inc. v. Dukakis, 591 F.2d 121 (1st Cir.1979) (ruling Massachusetts plan violated the purposes of the Medicaid Act when it limited state-funded abortions to those necessary to save mother’s life or where mother was victim of rape or incest)). The Curtis Court concluded that the state Medicaid plans in those cases did not draw distinctions based upon medical necessity, but discriminated against Medicaid recipients “solely on the basis of the ‘diagnosis, type of illness, or condition,’ ” in contravention of § 440.230(c)(1). Id. at 652 (quoting