To amend title XVIII of the Social Security Act to provide for standardized marketing requirements under the Medicare Advantage program and the Medicare Prescription Drug program and to provide for State certification prior to waiver of licensure requirements under the Medicare Prescription Drug program, and for other purposes.

Summary: Accountability and Transparency in Medicare Marketing Act of 2009 - Amends title XVIII (Medicare) of the Social Security Act to direct the Secretary of Health and Human Services (HHS) to request the National Association of Insurance Commissioners (NAIC) to develop standardized marketing requirements for: (1) Medicare Advantage organizations with respect to Medicare Advantage plans; and (2) prescription drug plan (PDP) sponsors with respect to Medicare PDPs. Requires such requirements to include prohibitions on certain activities and certain limitations.

Requires state certification before HHS waiver of licensing requirements under the Medicare PDP.

Directs the Secretary to request NAIC to establish a committee to study and make recommendations to the Secretary and Congress on the establishment of standardized benefit packages for Medicare Advantage plans and for Medicare PDPs and their regulation.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Accountability and Transparency in 
Medicare Marketing Act of 2009''.

SEC. 2. STANDARDIZED MARKETING REQUIREMENTS UNDER THE MEDICARE 
              ADVANTAGE AND MEDICARE PRESCRIPTION DRUG PROGRAMS.

    (a) Medicare Advantage Program.--
            (1) In general.--Section 1856 of the Social Security Act 
        (42 U.S.C. 1395w-26) is amended--
                    (A) in subsection (b)(1), by inserting ``or 
                subsection (c)'' after ``subsection (a)''; and
                    (B) by adding at the end the following new 
                subsection:
    ``(c) Standardized Marketing Requirements.--
            ``(1) Development by the naic.--
                    ``(A) Requirements.--The Secretary shall request 
                the National Association of Insurance Commissioners (in 
                this subsection referred to as the `NAIC') to--
                            ``(i) develop standardized marketing 
                        requirements for Medicare Advantage 
                        organizations with respect to Medicare 
                        Advantage plans and PDP sponsors with respect 
                        to prescription drug plans under part D; and
                            ``(ii) submit a report containing such 
                        requirements to the Secretary by not later than 
                        the date that is 9 months after the date of 
                        enactment of this subsection.
                    ``(B) Prohibited activities.--Such requirements 
                shall include prohibitions on the prohibited activities 
                described in section 1851(j)(1).
                    ``(C) Limitations.--Such requirements shall 
                establish limitations that include at least the 
                limitations described in section 1851(j)(2), except for 
                those relating to compensation.
                    ``(D) Election form.--Such requirements may 
                prohibit a Medicare Advantage organization or a PDP 
                sponsor (or an agent of such an organization or 
                sponsor) from completing any portion of any election 
                form used to carry out elections under section 1851 or 
                1860D-1 on behalf of any individual.
                    ``(E) Agent and broker commissions and 
                compensation.--Such requirements shall establish 
                standards--
                            ``(i) for fair and appropriate commissions 
                        for agents and brokers of Medicare Advantage 
                        organizations and PDP sponsors, including a 
                        prohibition on extra bonuses or incentives;
                            ``(ii) for the disclosure of such 
                        commissions; and
                            ``(iii) for the use of compensation for 
                        agents and brokers other than such commissions.
                Such standards shall ensure that the use of 
                compensation creates incentives for agents and brokers 
                to enroll individuals in the Medicare Advantage plan 
                that is intended to best meet their health care needs.
                    ``(F) Certain conduct of agents.--Such requirements 
                shall address the conduct of agents engaged in on-site 
                promotion at a facility of an organization with which 
                the Medicare Advantage organization or PDP sponsor has 
                a co-branding relationship.
                    ``(G) Other standards.--Such requirements may 
                establish such other standards relating to unfair trade 
                practices and marketing under Medicare Advantage plans 
                and prescription drug plans under part D as the NAIC 
                determines appropriate.
            ``(2) Implementation of requirements.--
                    ``(A) Adoption of naic developed requirements.--If 
                the NAIC develops standardized marketing requirements 
                and submits the report pursuant to paragraph (1), the 
                Secretary shall promulgate regulations for the adoption 
                of such requirements. The Secretary shall ensure that 
                such regulations take effect beginning with the first 
                open enrollment period beginning 12 months after the 
                date of enactment of this subsection.
                    ``(B) Requirements if naic does not submit 
                report.--If the NAIC does not develop standardized 
                marketing requirements and submit the report pursuant 
                to paragraph (1), the Secretary shall promulgate 
                regulations for standardized marketing requirements for 
                Medicare Advantage organizations with respect to 
                Medicare Advantage plans and PDP sponsors with respect 
                to prescription drug plans under part D. Such 
                regulations shall meet the requirements of 
                subparagraphs (B) through (F) of paragraph (1), and may 
                establish such other standards relating to marketing 
                under Medicare Advantage plans and prescription drug 
                plans as the Secretary determines appropriate. The 
                Secretary shall ensure that such regulations take 
                effect beginning with the first open enrollment period 
                beginning 12 months after the date of enactment of this 
                subsection.
                    ``(C) Consultation.--In establishing requirements 
                under this subsection, the NAIC or Secretary (as the 
                case may be) shall consult with a working group 
                composed of representatives of Medicare Advantage 
                organizations and PDP sponsors, consumer groups, and 
                other qualified individuals. Such representatives shall 
                be selected in a manner so as to insure balanced 
                representation among the interested groups.
            ``(3) State reporting of violations of standardized 
        marketing requirements.--The Secretary shall request that 
        States report any violations of the standardized marketing 
        requirements under the regulations under subparagraph (A) or 
        (B) of paragraph (2) to national and regional offices of the 
        Centers for Medicare & Medicaid Services.
            ``(4) Report.--The Secretary shall submit an annual report 
        to Congress on the enforcement of the standardized marketing 
        requirements under the regulations under subparagraph (A) or 
        (B) of paragraph (2), together with such recommendations as the 
        Secretary determines appropriate. Such report shall include--
                    ``(A) a list of any alleged violations of such 
                requirements reported to the Secretary by a State, a 
                Medicare Advantage organization, or a PDP sponsor; and
                    ``(B) the disposition of such reported 
                violations.''.
            (2) State authority to enforce standardized marketing 
        requirements.--
                    (A) In general.--Section 1856(b)(3) of the Social 
                Security Act (42 U.S.C. 1395w-26(b)(3)) is amended--
                            (i) by striking ``or State'' and inserting 
                        ``, State''; and
                            (ii) by inserting ``, or State laws or 
                        regulations enacting the standardized marketing 
                        requirements under subsection (c)'' after 
                        ``plan solvency''.
                    (B) No preemption of state sanctions.--Nothing in 
                title XVIII of the Social Security Act or the 
                provisions of, or amendments made by, this Act, shall 
                be construed to prohibit a State from conducting a 
                market conduct examination or from imposing sanctions 
                against Medicare Advantage organizations, PDP sponsors, 
                or agents or brokers of such organizations or sponsors 
                for violations of the standardized marketing 
                requirements under subsection (c) of section 1856 of 
                the Social Security Act (as added by paragraph (1)) as 
                enacted by that State.
            (3) Conforming amendment.--Section 1851(h)(4) of the Social 
        Security Act (42 U.S.C. 1395w-21(h)(4)) is amended by adding at 
        the end the following flush sentence:
        ``Beginning on the effective date of the implementation of the 
        regulations under subparagraph (A) or (B) of section 
        1856(c)(2), each Medicare Advantage organization with respect 
        to a Medicare Advantage plan offered by the organization (and 
        agents of such organization) shall comply with the standardized 
        marketing requirements under section 1856(c).''.
    (b) Medicare Prescription Drug Program.--Section 1860D-4 of the 
Social Security Act (42 U.S.C. 1395w-104) is amended by adding at the 
end the following new subsection:
    ``(m) Standardized Marketing Requirements.--A PDP sponsor with 
respect to a prescription drug plan offered by the sponsor (and agents 
of such sponsor) shall comply with the standardized marketing 
requirements under section 1856(c).''.

SEC. 3. STATE CERTIFICATION PRIOR TO WAIVER OF LICENSURE REQUIREMENTS 
              UNDER MEDICARE PRESCRIPTION DRUG PROGRAM.

    (a) In General.--Section 1860D-12(c) of the Social Security Act (42 
U.S.C. 1395w-112(c)) is amended--
            (1) in paragraph (1)(A), by striking ``In the case'' and 
        inserting ``Subject to paragraph (5), in the case''; and
            (2) by adding at the end the following new paragraph:
            ``(5) State certification required.--
                    ``(A) In general.--The Secretary may only grant a 
                waiver under paragraph (1)(A) if the Secretary has 
                received a certification from the State insurance 
                commissioner that the prescription drug plan has a 
                substantially complete application pending in the 
                State.
                    ``(B) Revocation of waiver upon finding of fraud 
                and abuse.--The Secretary shall revoke a waiver granted 
                under paragraph (1)(A) if the State insurance 
                commissioner submits a certification to the Secretary 
                that the recipient of such a waiver--
                            ``(i) has committed fraud or abuse with 
                        respect to such waiver;
                            ``(ii) has failed to make a good faith 
                        effort to satisfy State licensing requirements; 
                        or
                            ``(iii) was determined ineligible for 
                        licensure by the State.''.
    (b) Effective Date.--The amendments made by subsection (a) shall 
apply with respect to plan years beginning on or after January 1, 2010.

SEC. 4. NAIC RECOMMENDATIONS ON THE ESTABLISHMENT OF STANDARDIZED 
              BENEFIT PACKAGES FOR MEDICARE ADVANTAGE PLANS AND 
              PRESCRIPTION DRUG PLANS.

    Not later than 30 days after the date of enactment of this Act, the 
Secretary of Health and Human Services shall request the National 
Association of Insurance Commissioners to establish a committee to 
study and make recommendations to the Secretary and Congress on--
            (1) the establishment of standardized benefit packages for 
        Medicare Advantage plans under part C of title XVIII of the 
        Social Security Act and for prescription drug plans under part 
        D of such Act; and
            (2) the regulation of such plans.