I 

110TH CONGRESS 

1ST SESSION H. R. 4790 

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. 

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 18, 2007 

Ms. CASTOR introduced the following bill; which was referred to the Committee on Ways and Means, and in addition to the Committee on Energy 

and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Accountability and 

3 Transparency in Medicare Marketing Act of 2007’’. 

4 SEC. 2. STANDARDIZED MARKETING REQUIREMENTS 

5 UNDER THE MEDICARE ADVANTAGE AND 

6 MEDICARE PRESCRIPTION DRUG PROGRAMS. 

7 (a) MEDICARE ADVANTAGE PROGRAM.— 

8 (1) IN GENERAL.—Section 1856 of the Social 

9 Security Act (42 U.S.C. 1395w–26) is amended— 

10 (A) in subsection (b)(1), by inserting ‘‘or 

11 subsection (c)’’ after ‘‘subsection (a)’’; and 

12 (B) by adding at the end the following new 

13 subsection: 

14 ‘‘(c) STANDARDIZED MARKETING REQUIREMENTS.— 

15 ‘‘(1) DEVELOPMENT BY THE NAIC.— 

16 ‘‘(A) REQUIREMENTS.—The Secretary 

17 shall request the National Association of Insur18 ance Commissioners (in this subsection referred 

19 to as the ‘NAIC’) to— 

20 ‘‘(i) develop standardized marketing 

21 requirements for Medicare Advantage or22 ganizations with respect to Medicare Ad23 vantage plans and PDP sponsors with re24 spect to prescription drug plans under part 

25 D; and 


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1 ‘‘(ii) submit a report containing such 

2 requirements to the Secretary by not later 

3 than the date that is 9 months after the 

4 date of enactment of this subsection. 

5 ‘‘(B) PROHIBITED ACTIVITIES.—Such re6 quirements shall prohibit the following: 

7 ‘‘(i) Cross-selling of non-Medicare 

8 products or services with products or serv9 ices offered by a Medicare Advantage plan 

10 or a prescription drug plan under part D. 

11 ‘‘(ii) Up-selling from prescription drug 

12 plans under part D to Medicare Advantage 

13 plans. 

14 ‘‘(iii) Telemarketing (including cold 

15 calling) conducted by an organization with 

16 respect to a Medicare Advantage plan or a 

17 PDP sponsor with respect to a prescription 

18 drug plan under part D (or by an agent of 

19 such an organization or sponsor). 

20 ‘‘(iv) A Medicare Advantage organiza21 tion or a PDP sponsor providing cash or 

22 other monetary rebates as an inducement 

23 for enrollment or otherwise. 

24 ‘‘(C) ELECTION FORM.—Such require25 ments may prohibit a Medicare Advantage orVerDate Aug 31 2005 22:09 Dec 19, 2007 Jkt 069200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H4790.IH H4790

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1 ganization or a PDP sponsor (or an agent of 

2 such an organization or sponsor) from com3 pleting any portion of any election form used to 

4 carry out elections under section 1851 or 

5 1860D–1 on behalf of any individual. 

6 ‘‘(D) AGENT AND BROKER COMMIS7 SIONS.—Such requirements shall establish 

8 standards— 

9 ‘‘(i) for fair and appropriate commis10 sions for agents and brokers of Medicare 

11 Advantage organizations and PDP spon12 sors, including a prohibition on extra bo13 nuses or incentives; and 

14 ‘‘(ii) for the disclosure of such com15 missions. 

16 ‘‘(E) CERTAIN CONDUCT OF AGENTS.— 

17 Such requirements shall address the conduct of 

18 agents engaged in on-site promotion at a facil19 ity of an organization with which the Medicare 

20 Advantage organization or PDP sponsor has a 

21 co-branding relationship. 

22 ‘‘(F) OTHER STANDARDS.—Such require23 ments may establish such other standards relat24 ing to marketing under Medicare Advantage 


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1 plans and prescription drug plans under part D 

2 as the NAIC determines appropriate. 

3 ‘‘(2) IMPLEMENTATION OF REQUIREMENTS.— 

4 ‘‘(A) ADOPTION OF NAIC DEVELOPED RE5 QUIREMENTS.—If the NAIC develops standard6 ized marketing requirements and submits the 

7 report pursuant to paragraph (1), the Secretary 

8 shall promulgate regulations for the adoption of 

9 such requirements. The Secretary shall ensure 

10 that such regulations take effect not later than 

11 the date that is 10 months after the date of en12 actment of this subsection. 

13 ‘‘(B) REQUIREMENTS IF NAIC DOES NOT

14 SUBMIT REPORT.—If the NAIC does not de15 velop standardized marketing requirements and 

16 submit the report pursuant to paragraph (1), 

17 the Secretary shall promulgate regulations for 

18 standardized marketing requirements for Medi19 care Advantage organizations with respect to 

20 Medicare Advantage plans and PDP sponsors 

21 with respect to prescription drug plans under 

22 part D. Such regulations shall prohibit the con23 duct described in paragraph (1)(B), may pro24 hibit the conduct described in paragraph (1)(C), 

25 shall establish the standards described in paraVerDate Aug 31 2005 22:09 Dec 19, 2007 Jkt 069200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4790.IH H4790

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1 graph (1)(D), shall address the conduct de2 scribed in paragraph (1)(E), and may establish 

3 such other standards relating to marketing 

4 under Medicare Advantage plans and prescrip5 tion drug plans as the Secretary determines ap6 propriate. The Secretary shall ensure that such 

7 regulations take effect not later than the date 

8 that is 10 months after the date of enactment 

9 of this subsection. 

10 ‘‘(C) CONSULTATION.—In establishing re11 quirements under this subsection, the NAIC or 

12 Secretary (as the case may be) shall consult 

13 with a working group composed of representa14 tives of Medicare Advantage organizations and 

15 PDP sponsors, consumer groups, and other 

16 qualified individuals. Such representatives shall 

17 be selected in a manner so as to insure bal18 anced representation among the interested 

19 groups. 

20 ‘‘(3) STATE REPORTING OF VIOLATIONS OF

21 STANDARDIZED MARKETING REQUIREMENTS.—The 

22 Secretary shall request that States report any viola23 tions of the standardized marketing requirements 

24 under the regulations under subparagraph (A) or 


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1 (B) of paragraph (2) to national and regional offices 

2 of the Centers for Medicare & Medicaid Services. 

3 ‘‘(4) REPORT.—The Secretary shall submit an 

4 annual report to Congress on the enforcement of the 

5 standardized marketing requirements under the reg6 ulations under subparagraph (A) or (B) of para7 graph (2), together with such recommendations as 

8 the Secretary determines appropriate. Such report 

9 shall include— 

10 ‘‘(A) a list of any alleged violations of such 

11 requirements reported to the Secretary by a 

12 State, a Medicare Advantage organization, or a 

13 PDP sponsor; and 

14 ‘‘(B) the disposition of such reported viola15 tions.’’. 

16 (2) STATE AUTHORITY TO ENFORCE STAND17 ARDIZED MARKETING REQUIREMENTS.— 

18 (A) IN GENERAL.—Section 1856(b)(3) of 

19 the Social Security Act (42 U.S.C. 1395w– 

20 26(b)(3)) is amended— 

21 (i) by striking ‘‘or State’’ and insert22 ing ‘‘, State’’; and 

23 (ii) by inserting ‘‘, or State laws or 

24 regulations enacting the standardized marVerDate Aug 31 2005 22:09 Dec 19, 2007 Jkt 069200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H4790.IH H4790

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1 keting requirements under subsection (c)’’ 

2 after ‘‘plan solvency’’. 

3 (B) NO PREEMPTION OF STATE SANC4 TIONS.—Nothing in title XVIII of the Social 

5 Security Act or the provisions of, or amend6 ments made by, this Act, shall be construed to 

7 prohibit a State from imposing sanctions 

8 against Medicare Advantage organizations, 

9 PDP sponsors, or agents or brokers of such or10 ganizations or sponsors for violations of the 

11 standardized marketing requirements under 

12 subsection (c) of section 1856 of the Social Se13 curity Act (as added by paragraph (1)) as en14 acted by that State. 

15 (3) CONFORMING AMENDMENT.—Section 

16 1851(h)(4) of the Social Security Act (42 U.S.C. 

17 1395w–21(h)(4)) is amended by adding at the end 

18 the following flush sentence: 

19 ‘‘Beginning on the effective date of the implementa20 tion of the regulations under subparagraph (A) or 

21 (B) of section 1856(c)(2), each Medicare Advantage 

22 organization with respect to a Medicare Advantage 

23 plan offered by the organization (and agents of such 

24 organization) shall comply with the standardized 

25 marketing requirements under section 1856(c).’’. 


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1 (b) MEDICARE PRESCRIPTION DRUG PROGRAM.— 

2 Section 1860D–4 of the Social Security Act (42 U.S.C. 

3 1395w–104) is amended by adding at the end the fol4 lowing new subsection: 

5 ‘‘(l) STANDARDIZED MARKETING REQUIREMENTS.— 

6 A PDP sponsor with respect to a prescription drug plan 

7 offered by the sponsor (and agents of such sponsor) shall 

8 comply with the standardized marketing requirements 

9 under section 1856(c).’’. 

10 SEC. 3. STATE CERTIFICATION PRIOR TO WAIVER OF LI11 CENSURE REQUIREMENTS UNDER MEDICARE 

12 PRESCRIPTION DRUG PROGRAM. 

13 (a) IN GENERAL.—Section 1860D–12(c) of the So14 cial Security Act (42 U.S.C. 1395w–112(c)) is amended— 

15 (1) in paragraph (1)(A), by striking ‘‘In the 

16 case’’ and inserting ‘‘Subject to paragraph (5), in 

17 the case’’; and 

18 (2) by adding at the end the following new 

19 paragraph: 

20 ‘‘(5) STATE CERTIFICATION REQUIRED.— 

21 ‘‘(A) IN GENERAL.—The Secretary may 

22 only grant a waiver under paragraph (1)(A) if 

23 the Secretary has received a certification from 

24 the State insurance commissioner that the preVerDate Aug 31 2005 22:09 Dec 19, 2007 Jkt 069200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H4790.IH H4790

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1 scription drug plan has a substantially complete 

2 application pending in the State. 

3 ‘‘(B) REVOCATION OF WAIVER UPON FIND4 ING OF FRAUD AND ABUSE.—The Secretary 

5 shall revoke a waiver granted under paragraph 

6 (1)(A) if the State insurance commissioner sub7 mits a certification to the Secretary that the re8 cipient of such a waiver— 

9 ‘‘(i) has committed fraud or abuse 

10 with respect to such waiver; 

11 ‘‘(ii) has failed to make a good faith 

12 effort to satisfy State licensing require13 ments; or 

14 ‘‘(iii) was determined ineligible for li15 censure by the State.’’. 

16 (b) EFFECTIVE DATE.—The amendments made by 

17 paragraph (1) shall apply with respect to plan years begin18 ning on or after January 1, 2008. 

19 SEC. 4. NAIC RECOMMENDATIONS ON THE ESTABLISH20 MENT OF STANDARDIZED BENEFIT PACK21 AGES FOR MEDICARE ADVANTAGE PLANS 

22 AND PRESCRIPTION DRUG PLANS. 

23 Not later than 30 days after the date of enactment 

24 of this Act, the Secretary of Health and Human Services 

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1 missioners to establish a committee to study and make 

2 recommendations to the Secretary and Congress on— 

3 (1) the establishment of standardized benefit 

4 packages for Medicare Advantage plans under part 

5 C of title XVIII of the Social Security Act and for 

6 prescription drug plans under part D of such Act; 

7 and 

8 (2) the regulation of such plans. 

Æ 


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