I 

111TH CONGRESS 

1ST SESSION H. R. 3089 

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 

JUNE 26, 2009 

Ms. CASTOR of Florida (for herself and Ms. SCHAKOWSKY) 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 2009’’. 

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 include prohibitions on the 

7 prohibited activities described in section 

8 1851(j)(1). 

9 ‘‘(C) LIMITATIONS.—Such requirements 

10 shall establish limitations that include at least 

11 the limitations described in section 1851(j)(2), 

12 except for those relating to compensation. 

13 ‘‘(D) ELECTION FORM.—Such require14 ments may prohibit a Medicare Advantage or15 ganization or a PDP sponsor (or an agent of 

16 such an organization or sponsor) from com17 pleting any portion of any election form used to 

18 carry out elections under section 1851 or 

19 1860D–1 on behalf of any individual. 

20 ‘‘(E) AGENT AND BROKER COMMISSIONS

21 AND COMPENSATION.—Such requirements shall 

22 establish standards— 

23 ‘‘(i) for fair and appropriate commis24 sions for agents and brokers of Medicare 

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1 sors, including a prohibition on extra bo2 nuses or incentives; 

3 ‘‘(ii) for the disclosure of such com4 missions; and 

5 ‘‘(iii) for the use of compensation for 

6 agents and brokers other than such com7 missions. 

8 Such standards shall ensure that the use of 

9 compensation creates incentives for agents and 

10 brokers to enroll individuals in the Medicare 

11 Advantage plan that is intended to best meet 

12 their health care needs. 

13 ‘‘(F) 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 ‘‘(G) OTHER STANDARDS.—Such require20 ments may establish such other standards relat21 ing to unfair trade practices and marketing 

22 under Medicare Advantage plans and prescrip23 tion drug plans under part D as the NAIC de24 termines appropriate. 

25 ‘‘(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 beginning with 

8 the first open enrollment period beginning 12 

9 months after the date of enactment of this sub10 section. 

11 ‘‘(B) REQUIREMENTS IF NAIC DOES NOT

12 SUBMIT REPORT.—If the NAIC does not de13 velop standardized marketing requirements and 

14 submit the report pursuant to paragraph (1), 

15 the Secretary shall promulgate regulations for 

16 standardized marketing requirements for Medi17 care Advantage organizations with respect to 

18 Medicare Advantage plans and PDP sponsors 

19 with respect to prescription drug plans under 

20 part D. Such regulations shall meet the require21 ments of subparagraphs (B) through (F) of 

22 paragraph (1), and may establish such other 

23 standards relating to marketing under Medicare 

24 Advantage plans and prescription drug plans as 

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1 retary shall ensure that such regulations take 

2 effect beginning with the first open enrollment 

3 period beginning 12 months after the date of 

4 enactment of this subsection. 

5 ‘‘(C) CONSULTATION.—In establishing re6 quirements under this subsection, the NAIC or 

7 Secretary (as the case may be) shall consult 

8 with a working group composed of representa9 tives of Medicare Advantage organizations and 

10 PDP sponsors, consumer groups, and other 

11 qualified individuals. Such representatives shall 

12 be selected in a manner so as to insure bal13 anced representation among the interested 

14 groups. 

15 ‘‘(3) STATE REPORTING OF VIOLATIONS OF

16 STANDARDIZED MARKETING REQUIREMENTS.—The 

17 Secretary shall request that States report any viola18 tions of the standardized marketing requirements 

19 under the regulations under subparagraph (A) or 

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

21 of the Centers for Medicare & Medicaid Services. 

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

23 annual report to Congress on the enforcement of the 

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1 graph (2), together with such recommendations as 

2 the Secretary determines appropriate. Such report 

3 shall include— 

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

5 requirements reported to the Secretary by a 

6 State, a Medicare Advantage organization, or a 

7 PDP sponsor; and 

8 ‘‘(B) the disposition of such reported viola9 tions.’’. 

10 (2) STATE AUTHORITY TO ENFORCE STAND11 ARDIZED MARKETING REQUIREMENTS.— 

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

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

14 26(b)(3)) is amended— 

15 (i) by striking ‘‘or State’’ and insert16 ing ‘‘, State’’; and 

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

18 regulations enacting the standardized mar19 keting requirements under subsection (c)’’ 

20 after ‘‘plan solvency’’. 

21 (B) NO PREEMPTION OF STATE SANC22 TIONS.—Nothing in title XVIII of the Social 

23 Security Act or the provisions of, or amend24 ments made by, this Act, shall be construed to 

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1 duct examination or from imposing sanctions 

2 against Medicare Advantage organizations, 

3 PDP sponsors, or agents or brokers of such or4 ganizations or sponsors for violations of the 

5 standardized marketing requirements under 

6 subsection (c) of section 1856 of the Social Se7 curity Act (as added by paragraph (1)) as en8 acted by that State. 

9 (3) CONFORMING AMENDMENT.—Section 

10 1851(h)(4) of the Social Security Act (42 U.S.C. 

11 1395w–21(h)(4)) is amended by adding at the end 

12 the following flush sentence: 

13 ‘‘Beginning on the effective date of the implementa14 tion of the regulations under subparagraph (A) or 

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

16 organization with respect to a Medicare Advantage 

17 plan offered by the organization (and agents of such 

18 organization) shall comply with the standardized 

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

20 (b) MEDICARE PRESCRIPTION DRUG PROGRAM.— 

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

22 1395w–104) is amended by adding at the end the fol23 lowing new subsection: 

24 ‘‘(m) STANDARDIZED MARKETING REQUIRE25 MENTS.—A PDP sponsor with respect to a prescription 


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1 drug plan offered by the sponsor (and agents of such spon2 sor) shall comply with the standardized marketing require3 ments under section 1856(c).’’. 

4 SEC. 3. STATE CERTIFICATION PRIOR TO WAIVER OF LI5 CENSURE REQUIREMENTS UNDER MEDICARE 

6 PRESCRIPTION DRUG PROGRAM. 

7 (a) IN GENERAL.—Section 1860D–12(c) of the So8 cial Security Act (42 U.S.C. 1395w–112(c)) is amended— 

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

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

11 the case’’; and 

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

13 paragraph: 

14 ‘‘(5) STATE CERTIFICATION REQUIRED.— 

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

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

17 the Secretary has received a certification from 

18 the State insurance commissioner that the pre19 scription drug plan has a substantially complete 

20 application pending in the State. 

21 ‘‘(B) REVOCATION OF WAIVER UPON FIND22 ING OF FRAUD AND ABUSE.—The Secretary 

23 shall revoke a waiver granted under paragraph 

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1 mits a certification to the Secretary that the re2 cipient of such a waiver— 

3 ‘‘(i) has committed fraud or abuse 

4 with respect to such waiver; 

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

6 effort to satisfy State licensing require7 ments; or 

8 ‘‘(iii) was determined ineligible for li9 censure by the State.’’. 

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

11 subsection (a) shall apply with respect to plan years begin12 ning on or after January 1, 2010. 

13 SEC. 4. NAIC RECOMMENDATIONS ON THE ESTABLISH14 MENT OF STANDARDIZED BENEFIT PACK15 AGES FOR MEDICARE ADVANTAGE PLANS 

16 AND PRESCRIPTION DRUG PLANS. 

17 Not later than 30 days after the date of enactment 

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

19 shall request the National Association of Insurance Com20 missioners to establish a committee to study and make 

21 recommendations to the Secretary and Congress on— 

22 (1) the establishment of standardized benefit 

23 packages for Medicare Advantage plans under part 

24 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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