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The Washington Legal Foundation has found individual plaintiffs to continue its legal challenge of federal government guidelines that limit advice medical professionals can give to senior citizens about their options under the government’s Medicare Part D prescription drug program. In an amended complaint filed earlier this month in a Washington federal court against top officials at the U.S. Department of Health & Human Services and its Centers for Medicare & Medicare Services, plaintiffs allege the policies violate senior citizens’ first amendment rights. Rebecca Fox v. Michael O. Leavitt, No. 06-01490 (D.C.). The complaint states that the agencies’ policy of “suppressing truthful, non-misleading speech by providers” about the merits of various prescription drug plans “interferes with the ability of Plaintiffs to receive such materials.” Last month, a federal court rejected the legal foundation’s preliminary injunction motion on the grounds that it lacked standing to bring the lawsuit. The U.S. Department of Justice declined to discuss the ongoing lawsuit, but an agency case memo filed in February notes that the marketing guidelines “do not directly regulate providers at all” and that the guideline’s anti-steering provisions are similar to other types of conditions Medicare places on health care providers and suppliers. The memo also noted that the government has an interest in protecting Medicare beneficiaries from providers who might guide a patient into a particular plan for financial gain.

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