II 

110TH CONGRESS 

1ST SESSION S. 1883 

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 SENATE OF THE UNITED STATES 

JULY 26, 2007 

Mr. KOHL (for himself, Mr. DORGAN, and Mr. WYDEN) introduced the 

following bill; which was read twice and referred to the Committee on Finance 

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, 

3 SECTION 1. SHORT TITLE. 

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

5 Transparency in Medicare Marketing Act of 2007’’. 


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1 SEC. 2. STANDARDIZED MARKETING REQUIREMENTS 

2 UNDER THE MEDICARE ADVANTAGE AND 

3 MEDICARE PRESCRIPTION DRUG PROGRAMS. 

4 (a) MEDICARE ADVANTAGE PROGRAM.— 

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

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

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

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

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

10 subsection: 

11 ‘‘(c) STANDARDIZED MARKETING REQUIREMENTS.— 

12 ‘‘(1) DEVELOPMENT BY THE NAIC.— 

13 ‘‘(A) REQUIREMENTS.—The Secretary 

14 shall request the National Association of Insur15 ance Commissioners (in this subsection referred 

16 to as the ‘NAIC’) to— 

17 ‘‘(i) develop standardized marketing 

18 requirements for Medicare Advantage or19 ganizations with respect to Medicare Ad20 vantage plans and PDP sponsors with re21 spect to prescription drug plans under part 

22 D; and 

23 ‘‘(ii) submit a report containing such 

24 requirements to the Secretary by not later 

25 than the date that is 9 months after the 

26 date of enactment of this subsection. 


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1 ‘‘(B) PROHIBITED ACTIVITIES.—Such re2 quirements shall prohibit the following: 

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

4 products or services with products or serv5 ices offered by a Medicare Advantage plan 

6 or a prescription drug plan under part D. 

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

8 plans under part D to Medicare Advantage 

9 plans. 

10 ‘‘(iii) Telemarketing (including cold 

11 calling) conducted by an organization with 

12 respect to a Medicare Advantage plan or a 

13 PDP sponsor with respect to a prescription 

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

15 such an organization or sponsor). 

16 ‘‘(iv) A Medicare Advantage organiza17 tion or a PDP sponsor providing cash or 

18 other monetary rebates as an inducement 

19 for enrollment or otherwise. 

20 ‘‘(C) ELECTION FORM.—Such require21 ments may prohibit a Medicare Advantage or22 ganization or a PDP sponsor (or an agent of 

23 such an organization or sponsor) from com24 pleting any portion of any election form used to 


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1 carry out elections under section 1851 or 

2 1860D–1 on behalf of any individual. 

3 ‘‘(D) AGENT AND BROKER COMMIS4 SIONS.—Such requirements shall establish 

5 standards— 

6 ‘‘(i) for fair and appropriate commis7 sions for agents and brokers of Medicare 

8 Advantage organizations and PDP spon9 sors, including a prohibition on extra bo10 nuses or incentives; and 

11 ‘‘(ii) for the disclosure of such com12 missions. 

13 ‘‘(E) CERTAIN CONDUCT OF AGENTS.— 

14 Such requirements shall address the conduct of 

15 agents engaged in on-site promotion at a facil16 ity of an organization with which the Medicare 

17 Advantage organization or PDP sponsor has a 

18 co-branding relationship. 

19 ‘‘(F) OTHER STANDARDS.—Such require20 ments may establish such other standards relat21 ing to marketing under Medicare Advantage 

22 plans and prescription drug plans under part D 

23 as the NAIC determines appropriate. 

24 ‘‘(2) IMPLEMENTATION OF REQUIREMENTS.— 


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1 ‘‘(A) ADOPTION OF NAIC DEVELOPED RE2 QUIREMENTS.—If the NAIC develops standard3 ized marketing requirements and submits the 

4 report pursuant to paragraph (1), the Secretary 

5 shall promulgate regulations for the adoption of 

6 such requirements. The Secretary shall ensure 

7 that such regulations take effect not later than 

8 the date that is 10 months after the date of en9 actment of this subsection. 

10 ‘‘(B) REQUIREMENTS IF NAIC DOES NOT

11 SUBMIT REPORT.—If the NAIC does not de12 velop standardized marketing requirements and 

13 submit the report pursuant to paragraph (1), 

14 the Secretary shall promulgate regulations for 

15 standardized marketing requirements for Medi16 care Advantage organizations with respect to 

17 Medicare Advantage plans and PDP sponsors 

18 with respect to prescription drug plans under 

19 part D. Such regulations shall prohibit the con20 duct described in paragraph (1)(B), may pro21 hibit the conduct described in paragraph (1)(C), 

22 shall establish the standards described in para23 graph (1)(D), shall address the conduct de24 scribed in paragraph (1)(E), and may establish 

25 such other standards relating to marketing 


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1 under Medicare Advantage plans and prescrip2 tion drug plans as the Secretary determines ap3 propriate. The Secretary shall ensure that such 

4 regulations take effect not later than the date 

5 that is 10 months after the date of enactment 

6 of this subsection. 

7 ‘‘(C) CONSULTATION.—In establishing re8 quirements under this subsection, the NAIC or 

9 Secretary (as the case may be) shall consult 

10 with a working group composed of representa11 tives of Medicare Advantage organizations and 

12 PDP sponsors, consumer groups, and other 

13 qualified individuals. Such representatives shall 

14 be selected in a manner so as to insure bal15 anced representation among the interested 

16 groups. 

17 ‘‘(3) STATE REPORTING OF VIOLATIONS OF

18 STANDARDIZED MARKETING REQUIREMENTS.—The 

19 Secretary shall request that States report any viola20 tions of the standardized marketing requirements 

21 under the regulations under subparagraph (A) or 

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

23 of the Centers for Medicare & Medicaid Services. 

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

25 annual report to Congress on the enforcement of the 


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1 standardized marketing requirements under the reg2 ulations under subparagraph (A) or (B) of para3 graph (2), together with such recommendations as 

4 the Secretary determines appropriate. Such report 

5 shall include— 

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

7 requirements reported to the Secretary by a 

8 State, a Medicare Advantage organization, or a 

9 PDP sponsor; and 

10 ‘‘(B) the disposition of such reported viola11 tions.’’. 

12 (2) STATE AUTHORITY TO ENFORCE STAND13 ARDIZED MARKETING REQUIREMENTS.— 

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

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

16 26(b)(3)) is amended— 

17 (i) by striking ‘‘or State’’ and insert18 ing ‘‘, State’’; and 

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

20 regulations enacting the standardized mar21 keting requirements under subsection (c)’’ 

22 after ‘‘plan solvency’’. 

23 (B) NO PREEMPTION OF STATE SANC24 TIONS.—Nothing in title XVIII of the Social 

25 Security Act or the provisions of, or amendVerDate Aug 31 2005 06:38 Jul 29, 2007 Jkt 059200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1883.IS S1883

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1 ments made by, this Act, shall be construed to 

2 prohibit a State from imposing sanctions 

3 against Medicare Advantage organizations, 

4 PDP sponsors, or agents or brokers of such or5 ganizations or sponsors for violations of the 

6 standardized marketing requirements under 

7 subsection (c) of section 1856 of the Social Se8 curity Act (as added by paragraph (1)) as en9 acted by that State. 

10 (3) CONFORMING AMENDMENT.—Section 

11 1851(h)(4) of the Social Security Act (42 U.S.C. 

12 1395w–21(h)(4)) is amended by adding at the end 

13 the following flush sentence: 

14 ‘‘Beginning on the effective date of the implementa15 tion of the regulations under subparagraph (A) or 

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

17 organization with respect to a Medicare Advantage 

18 plan offered by the organization (and agents of such 

19 organization) shall comply with the standardized 

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

21 (b) MEDICARE PRESCRIPTION DRUG PROGRAM.— 

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

23 1395w–104) is amended by adding at the end the fol24 lowing new subsection: 


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1 ‘‘(l) STANDARDIZED MARKETING REQUIREMENTS.— 

2 A PDP sponsor with respect to a prescription drug plan 

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

4 comply with the standardized marketing requirements 

5 under section 1856(c).’’. 

6 SEC. 3. STATE CERTIFICATION PRIOR TO WAIVER OF LI7 CENSURE REQUIREMENTS UNDER MEDICARE 

8 PRESCRIPTION DRUG PROGRAM. 

9 (a) IN GENERAL.—Section 1860D–12(c) of the So10 cial Security Act (42 U.S.C. 1395w–112(c)) is amended— 

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

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

13 the case’’; and 

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

15 paragraph: 

16 ‘‘(5) STATE CERTIFICATION REQUIRED.— 

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

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

19 the Secretary has received a certification from 

20 the State insurance commissioner that the pre21 scription drug plan has a substantially complete 

22 application pending in the State. 

23 ‘‘(B) REVOCATION OF WAIVER UPON FIND24 ING OF FRAUD AND ABUSE.—The Secretary 

25 shall revoke a waiver granted under paragraph 


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1 (1)(A) if the State insurance commissioner sub2 mits a certification to the Secretary that the re3 cipient of such a waiver— 

4 ‘‘(i) has committed fraud or abuse 

5 with respect to such waiver; 

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

7 effort to satisfy State licensing require8 ments; or 

9 ‘‘(iii) was determined ineligible for li10 censure by the State.’’. 

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

12 paragraph (1) shall apply with respect to plan years begin13 ning on or after January 1, 2008. 

14 SEC. 4. NAIC RECOMMENDATIONS ON THE ESTABLISH15 MENT OF STANDARDIZED BENEFIT PACK16 AGES FOR MEDICARE ADVANTAGE PLANS 

17 AND PRESCRIPTION DRUG PLANS. 

18 Not later than 30 days after the date of enactment 

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

20 shall request the National Association of Insurance Com21 missioners to establish a committee to study and make 

22 recommendations to the Secretary and Congress on— 

23 (1) the establishment of standardized benefit 

24 packages for Medicare Advantage plans under part 

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


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1 prescription drug plans under part D of such Act; 

2 and 

3 (2) the regulation of such plans. 

Æ 


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