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Washington Legal Foundation v. Leavitt

March 19, 2007

WASHINGTON LEGAL FOUNDATION, PLAINTIFF,
v.
MICHAEL O. LEAVITT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Washington Legal Foundation ("WLF") brought this suit against the U.S. Department of Health and Human Services and its component, Centers for Medicare and Medicare Services*fn1 (collectively "CMS"). The Complaint presents a First Amendment challenge to CMS guidelines regulating private entity marketing of Medicare Part D, the Medicare Prescription Drug Benefit. WLF has filed a motion for a preliminary injunction. CMS has opposed, primarily on the ground that it is not likely that WLF can demonstrate standing to bring this suit.*fn2 The Court agrees with CMS. It is not likely that WLF will establish standing, and thus the request for a preliminary injunction will be denied.

I. BACKGROUND

Medicare Part D is a managed care program that uses private health care organizations to sponsor prescription drug benefit plans. Defs.' Opp'n at 1. Medicare beneficiaries choose from a number of plans with different coverage and prices. Id. Part D plans contract with health care providers, usually pharmacists, to deliver prescription drugs. Id. According to CMS, such health care providers may have an incentive to steer a beneficiary toward a particular plan when it would financially benefit the providers. Id. at 1-2. To protect Medicare beneficiaries from this potential conflict of interest, CMS has instituted marketing guidelines. Id. at 2. The guidelines prohibit plans from using their providers to steer an undecided enrollee toward a plan for which the provider expects compensation directly or indirectly. Id. Ex. G at 8. WLF contends that by imposing limitations on the information that health care providers may communicate to Medicare beneficiaries, CMS violates the First Amendment rights of Medicare beneficiaries to receive truthful information regarding insurance coverage. Pl.'s Mem. at 1. Further, WLF claims that the marketing guideline restrictions "make it virtually impossible for providers to give meaningful information and advice to their patients, including WLF's members and supporters, regarding which Part D plan best suits their needs." Id. at 12. WLF seeks injunctive and declaratory relief. Id. at 5. CMS counters by asserting that the marketing guidelines are narrowly tailored to promote the significant government interest of protecting Medicare beneficiaries from provider conflicts of interest. Defs.' Opp'n at 2.

WLF brought this suit on behalf of its alleged members, Rebecca Fox, Mary Samp, and Edward Samp. Because the suit seeks only injunctive and declaratory relief, WLF contends that the suit does not require the participation of WLF's individual members and WLF can prosecute the suit in its own name on behalf of three of its members. CMS contends that WLF lacks standing to bring this suit.

II. LEGAL STANDARD

A court must consider four factors in deciding whether to issue a preliminary injunction:

1. whether the movant has shown a substantial likelihood of success on the merits;

2. whether the movant would suffer irreparable injury if the injunction is not granted;

3. whether the issuance of a preliminary injunction would cause substantial harm to other interested parties; and

4. whether the public interest would be served by the issuance of an injunction.

Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998). A preliminary injunction is "an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion." Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004).

III. ANALYSIS

A. Standing ...


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