[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4767 Introduced in Senate (IS)]

<DOC>






118th CONGRESS
  2d Session
                                S. 4767

   To amend the Patient Protection and Affordable Care Act to reduce 
    fraudulent enrollments in qualified health plans, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 24, 2024

  Mr. Wyden (for himself, Mr. Brown, Ms. Duckworth, Mrs. Murray, Mr. 
 Schatz, and Mr. Van Hollen) introduced the following bill; which was 
 read twice and referred to the Committee on Health, Education, Labor, 
                              and Pensions

_______________________________________________________________________

                                 A BILL


 
   To amend the Patient Protection and Affordable Care Act to reduce 
    fraudulent enrollments in qualified health plans, and for other 
                               purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Insurance Fraud Accountability 
Act''.

SEC. 2. REDUCTION OF FRAUDULENT ENROLLMENT IN QUALIFIED HEALTH PLANS.

    (a) Penalties for Agents and Brokers.--Section 1411(h)(1) of the 
Patient Protection and Affordable Care Act (42 U.S.C. 18081(h)(1)) is 
amended--
            (1) in subparagraph (A)--
                    (A) by redesignating clause (ii) as clause (iv);
                    (B) in clause (i)--
                            (i) in the matter preceding subclause (I), 
                        by striking ``If--'' and all that follows 
                        through the ``such person'' in the matter 
                        following subclause (II) and inserting the 
                        following: ``If any person (other than an agent 
                        or broker) fails to provide correct information 
                        under subsection (b) and such failure is 
                        attributable to negligence or disregard of any 
                        rules or regulations of the Secretary, such 
                        person''; and
                            (ii) in the second sentence, by striking 
                        ``For purposes'' and inserting the following:
                            ``(iii) Definitions of negligence, 
                        disregard.--For purposes'';
                    (C) by inserting after clause (i) the following:
                            ``(ii) Civil penalties for certain 
                        violations by agents or brokers.--If any agent 
                        or broker fails to provide correct information 
                        under subsection (b) or section 1311(c)(8) or 
                        other information, as specified by the 
                        Secretary, and such failure is attributable to 
                        negligence or disregard of any rules or 
                        regulations of the Secretary, such agent or 
                        broker shall be subject, in addition to any 
                        other penalties that may be prescribed by law, 
                        including subparagraph (C), to a civil penalty 
                        of not less than $10,000 and not more than 
                        $50,000 with respect to each individual who is 
                        the subject of an application for which such 
                        incorrect information is provided.''; and
                    (D) in clause (iv) (as so redesignated), by 
                inserting ``or (ii)'' after ``clause (i)'';
            (2) in subparagraph (B)--
                    (A) by inserting ``including subparagraph (C),'' 
                after ``law,'';
                    (B) by striking ``Any person'' and inserting the 
                following:
                            ``(i) In general.--Any person''; and
                    (C) by adding at the end the following:
                            ``(ii) Civil penalties for knowing 
                        violations by agents or brokers.--
                                    ``(I) In general.--Any agent or 
                                broker who knowingly provides false or 
                                fraudulent information under subsection 
                                (b) or section 1311(c)(8), or other 
                                false or fraudulent information as part 
                                of an application for enrollment in a 
                                qualified health plan offered through 
                                an Exchange, as specified by the 
                                Secretary, shall be subject, in 
                                addition to any other penalties that 
                                may be prescribed by law, including 
                                subparagraph (C), to a civil penalty of 
                                not more than $200,000 with respect to 
                                each individual who is the subject of 
                                an application for which such false or 
                                fraudulent information is provided.
                                    ``(II) Procedure.--The provisions 
                                of section 1128A of the Social Security 
                                Act (other than subsections (a) and (b) 
                                of such section) shall apply to a civil 
                                monetary penalty under subclause (I) in 
                                the same manner as such provisions 
                                apply to a penalty or proceeding under 
                                section 1128A of the Social Security 
                                Act.''; and
            (3) by adding at the end the following:
                    ``(C) Criminal penalties.--Any agent or broker who 
                knowingly and willfully provides false or fraudulent 
                information under subsection (b) or section 1311(c)(8), 
                or other false or fraudulent information as part of an 
                application for enrollment in a qualified health plan 
                offered through an Exchange, as specified by the 
                Secretary, shall be fined under title 18, United States 
                Code, imprisoned for not more than 10 years, or 
                both.''.
    (b) Consumer Protections.--
            (1) In general.--Section 1311(c) of the Patient Protection 
        and Affordable Care Act (42 U.S.C. 18031(c)) is amended by 
        adding at the end the following:
            ``(8) Agent- or broker-assisted enrollment in qualified 
        health plans in certain exchanges.--
                    ``(A) In general.--For plan years beginning on or 
                after such date specified by the Secretary, but not 
                later than January 1, 2028, in the case of an Exchange 
                that the Secretary operates pursuant to section 
                1321(c)(1), the Secretary shall establish a 
                verification process for new enrollments of individuals 
                in, and changes in coverage for individuals under, a 
                qualified health plan offered through such Exchange, 
                which are submitted by an agent or broker in accordance 
                with section 1312(e) and for which the agent or broker 
                is eligible to receive a commission.
                    ``(B) Requirements.--The enrollment verification 
                process under subparagraph (A) shall include--
                            ``(i) a requirement that the agent or 
                        broker provide with the new enrollment or 
                        coverage change such documentation or evidence 
                        (such as a standardized consent form) or other 
                        sources as the Secretary determines necessary 
                        to establish that the agent or broker has the 
                        consent of the individual for the new 
                        enrollment or coverage change;
                            ``(ii) a requirement that any commissions 
                        due to a broker or agent for such new 
                        enrollment or coverage change are paid after 
                        the enrollee has resolved all inconsistencies 
                        in accordance with paragraphs (3) and (4) of 
                        section 1411(e);
                            ``(iii) a requirement that the information 
                        required under clause (i) and, as applicable, 
                        the date on which inconsistencies are resolved 
                        as described in clause (ii), is accessible to 
                        the applicable qualified health plan through a 
                        database or other resource, as determined by 
                        the Secretary, so that any commissions due to a 
                        broker or agent for such enrollment can be 
                        effectuated at the appropriate time;
                            ``(iv) a requirement that individuals are 
                        notified of any changes to enrollment, 
                        coverage, the agent of record, or premium tax 
                        credits in a timely manner and that such notice 
                        provides plain language instructions on how 
                        individuals can cancel unauthorized activity;
                            ``(v) a requirement that individuals be 
                        able to access their account information on a 
                        website or other technology platform, as 
                        defined by the Secretary, when used to submit 
                        an enrollment or plan change, in lieu of the 
                        Exchange website described in subsection 
                        (d)(4)(C), including information on the agent 
                        of record, the qualified health plan, and when 
                        any changes are made to the agent of record or 
                        the qualified health plan, on a consumer-facing 
                        website or through a toll-free telephone 
                        hotline; and
                            ``(vi) a requirement that the agent or 
                        broker report to the Secretary any third-party 
                        marketing organization or field marketing 
                        organization (as such terms are defined in 
                        section 1312(e)) involved in the chain of 
                        enrollment (as so defined) with respect to such 
                        new enrollment or coverage change.
                    ``(C) Consumer protection.--The Secretary shall 
                ensure that the enrollment verification process under 
                subparagraph (A) prioritizes continuity of coverage and 
                care for individuals, including by not disenrolling 
                individuals from a qualified health plan without the 
                consent of the individual, regardless of whether the 
                broker, agent, or qualified health plan is in violation 
                of any requirement under this paragraph.''.
            (2) Required reporting.--Section 1311(c)(1) of the Patient 
        Protection and Affordable Care Act (42 U.S.C. 18031(c)(1)) is 
        amended--
                    (A) in subparagraph (H), by striking ``and'' at the 
                end;
                    (B) in subparagraph (I), by striking the period at 
                the end and inserting ``; and''; and
                    (C) by adding at the end the following:
                    ``(J) report to the Secretary the termination (as 
                defined in section 1312(e)(4)(C)) of an issuer.''.
    (c) Authority to Regulate Field Marketing Organizations and Third-
Party Marketing Organizations.--Section 1312(e) of the Patient 
Protection and Affordable Care Act (42 U.S.C. 18032(e)) is amended--
            (1) by redesignating paragraphs (1) and (2) as subclauses 
        (I) and (II), respectively, and adjusting the margins 
        accordingly;
            (2) in subclause (II) (as so redesignated), by striking the 
        period at the end and inserting ``; and'';
            (3) by striking the subsection designation and heading and 
        all that follows through ``brokers--'' and inserting the 
        following:
    ``(e) Regulation of Agents, Brokers, and Certain Marketing 
Organizations.--
            ``(1) Agents, brokers, and certain marketing 
        organizations.--
                    ``(A) In general.--The Secretary shall establish 
                procedures under which a State may allow--
                            ``(i) agents or brokers--''; and
            (4) by adding at the end the following:
                            ``(ii) field marketing organizations and 
                        third-party marketing organizations to 
                        participate in the chain of enrollment for an 
                        individual with respect to qualified health 
                        plans offered through an Exchange.
                    ``(B) Criteria.--For plan years beginning on or 
                after such date specified by the Secretary, but not 
                later than January 1, 2028, the Secretary, by 
                regulation, shall establish criteria for States to use 
                in determining whether to allow agents and brokers to 
                enroll individuals and employers in qualified health 
                plans as described in subclause (I) of subparagraph 
                (A)(i) and to assist individuals as described in 
                subclause (II) of such subparagraph and field marketing 
                organizations and third-party marketing organizations 
                to participate in the chain of enrollment as described 
                in subparagraph (A)(ii). Such criteria shall, at a 
                minimum, require that--
                            ``(i) an agent or broker act in accordance 
                        with a standard of conduct that includes a duty 
                        of such agent or broker to act in the best 
                        interests of the enrollee;
                            ``(ii) a field marketing organization or 
                        third-party marketing organization agree to 
                        report the termination of an agent or broker to 
                        the applicable State and the Secretary, 
                        including the reason for termination; and
                            ``(iii) an agent, broker, field marketing 
                        organization, or third-party marketing 
                        organization--
                                    ``(I) meet such marketing 
                                requirements as are required by the 
                                Secretary;
                                    ``(II) meet marketing requirements 
                                in accordance with other applicable 
                                Federal or State law;
                                    ``(III) does not employ practices 
                                that are confusing or misleading, as 
                                determined by the Secretary;
                                    ``(IV) submit all marketing 
                                materials to the Secretary for, as 
                                determined appropriate by the 
                                Secretary, review and approval;
                                    ``(V) is a licensed agent or broker 
                                or meets other licensure requirements, 
                                as required by the State;
                                    ``(VI) register with the Secretary; 
                                and
                                    ``(VII) does not compensate any 
                                individual or organization for 
                                referrals or any other service relating 
                                to the sale of, marketing for, or 
                                enrollment in qualified health plans 
                                unless such individual or organization 
                                meets the criteria described in 
                                subclauses (I) through (VI).
                    ``(C) Definitions.--In this paragraph:
                            ``(i) Chain of enrollment.--The term `chain 
                        of enrollment', with respect to enrollment of 
                        an individual in a qualified health plan 
                        offered through an Exchange, means any steps 
                        taken from marketing to such individual, to 
                        such individual making an enrollment decision 
                        with respect to such a plan.
                            ``(ii) Field marketing organization.--The 
                        term `field marketing organization' means an 
                        organization or individual that directly 
                        employs or contracts with agents and brokers, 
                        or contracts with carriers, to provide 
                        functions relating to enrollment of individuals 
                        in qualified health plans offered through an 
                        Exchange as part of the chain of enrollment.
                            ``(iii) Marketing.--The term `marketing' 
                        means the use of marketing materials to provide 
                        information to current and prospective 
                        enrollees in a qualified health plan offered 
                        through an Exchange.
                            ``(iv) Marketing materials.--The term 
                        `marketing materials' means materials relating 
                        to a qualified health plan offered through an 
                        Exchange or benefits offered through an 
                        Exchange that--
                                    ``(I) are intended--
                                            ``(aa) to draw an 
                                        individual's attention to such 
                                        plan or the premium tax credits 
                                        or cost-sharing reductions for 
                                        such plan or plans offered 
                                        through an Exchange;
                                            ``(bb) to influence an 
                                        individual's decision-making 
                                        process when selecting a 
                                        qualified health plan in which 
                                        to enroll; or
                                            ``(cc) to influence an 
                                        enrollee's decision to stay 
                                        enrolled in such plan; and
                                    ``(II) include or address content 
                                regarding the benefits, benefit 
                                structure, premiums, or cost sharing of 
                                such plan.
                            ``(v) Termination.--The term `termination', 
                        with respect to a contract or business 
                        arrangement between an agent or broker and a 
                        field marketing organization, third-party 
                        marketing organization, or health insurance 
                        issuer, means--
                                    ``(I) the ending of such contract 
                                or business arrangement, either 
                                unilaterally by one of the parties or 
                                on mutual agreement; or
                                    ``(II) the expiration of such 
                                contract or business arrangement that 
                                is not replaced by a substantially 
                                similar agreement.
                            ``(vi) Third-party marketing 
                        organization.--The term `third-party marketing 
                        organization' means an organization or 
                        individual that is compensated to perform lead 
                        generation, marketing, or sales relating to 
                        enrollment of individuals in qualified health 
                        plans offered through an Exchange as part of 
                        the chain of enrollment.''.
    (d) Transparency.--Section 1312(e) of the Patient Protection and 
Affordable Care Act (42 U.S.C. 18032(e)) (as amended by subsection (c)) 
is amended by adding at the end the following:
            ``(2) Audits.--
                    ``(A) In general.--For plan years beginning on or 
                after such date specified by the Secretary, but not 
                later than January 1, 2028, the Secretary, in 
                coordination with the States and in consultation with 
                the National Association of Insurance Commissioners, 
                shall implement a process for the oversight and 
                enforcement of agent and broker compliance with this 
                section and other applicable Federal and State law 
                (including regulations) that shall include--
                            ``(i) periodic audits of agents and brokers 
                        based on--
                                    ``(I) complaints filed with the 
                                Secretary by individuals enrolled by 
                                such an agent or broker in a qualified 
                                health plan offered through an 
                                Exchange;
                                    ``(II) an incident or enrollment 
                                pattern that suggests fraud; and
                                    ``(III) other factors determined by 
                                the Secretary; and
                            ``(ii) a process under which the Secretary 
                        shall share audit results and refer potential 
                        cases of fraud to the relevant State department 
                        of insurance.
                    ``(B) Effect.--Nothing in this paragraph limits or 
                restricts any referrals made under section 1311(i)(3) 
                or any enforcement actions under section 1411(h).
            ``(3) List.--The Secretary shall develop a process to 
        regularly provide to qualified health plans, Exchanges, and 
        States a list of suspended and terminated agents and 
        brokers.''.
                                 <all>