Junk Plan Accountability and Disclosure Act of 2021

II 117TH CONGRESS 1ST SESSION S. 1002 To prohibit false or misleading advertising for health insurance coverage, require warnings and reporting with respect to noncomprehensive health plans, encourage enrollment in health plans, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 25, 2021 Mr. CASEY (for himself, Ms. BALDWIN, and Ms. STABENOW) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To prohibit false or misleading advertising for health insur- ance coverage, require warnings and reporting with re- spect to noncomprehensive health plans, encourage en- rollment in health plans, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Junk Plan Accountability and Disclosure Act of 2021’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 Sec. 1. Short title; table of contents. VerDate Sep 11 2014 04:45 Apr 29, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S1002.IS S1002 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 1002 IS TITLE I—PROHIBITION OF FALSE OR MISLEADING ONLINE ADVERTISING FOR HEALTH INSURANCE COVERAGE Sec. 101. Definitions. Sec. 102. FTC oversight of online health insurance advertisements. TITLE II—WARNINGS AND REPORTING REQUIREMENTS FOR NONCOMPREHENSIVE HEALTH PLANS Sec. 201. Definitions. Sec. 202. Requirements for notice regarding benefits. Sec. 203. Reporting requirements. Sec. 204. Enforcement. Sec. 205. Regulations. TITLE III—ENCOURAGING ENROLLMENT IN HEALTH PLANS Sec. 301. Sense of Congress. Sec. 302. Requiring Marketplace outreach, educational activities, and annual enrollment targets. Sec. 303. Report on effects of website maintenance during open enrollment. Sec. 304. Promoting consumer outreach and education. Sec. 305. Improving transparency and accountability in the Marketplace. Sec. 306. Improving awareness of health coverage options. Sec. 307. Promoting State innovations to expand coverage. TITLE I—PROHIBITION OF 1 FALSE OR MISLEADING ON- 2 LINE ADVERTISING FOR 3 HEALTH INSURANCE COV- 4 ERAGE 5 SEC. 101. DEFINITIONS. 6 In this title: 7 (1) COMMISSION.—The term ‘‘Commission’’ 8 means the Federal Trade Commission. 9 (2) HEALTH INSURANCE COVERAGE.—The term 10 ‘‘health insurance coverage’’ means benefits con- 11 sisting of medical care (provided directly, through 12 insurance or reimbursement, or otherwise and in- 13 cluding items and services paid for as medical care, 14 VerDate Sep 11 2014 04:45 Apr 29, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1002.IS S1002 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 1002 IS but excluding any group health plan) that are of- 1 fered to individuals, including— 2 (A) a plan offered through an association; 3 (B) short-term limited duration insurance; 4 (C) a policy for such benefits that is not 5 offered by a health insurance issuer (as such 6 term is defined in section 2791(b)(2) of the 7 Public Health Service Act (42 U.S.C. 300gg– 8 91(b)(2)); and 9 (D) other health care arrangements that 10 are not health plans. 11 (3) NON-ACA COMPLIANT HEALTH INSURANCE 12 COVERAGE.—The term ‘‘non-ACA compliant health 13 insurance coverage’’ has the meaning given such 14 term in paragraph (3) of section 1321(c) of the Pa- 15 tient Protection and Affordable Care Act (42 U.S.C. 16 18041(c)) (as added by section 302). 17 (4) ONLINE PLATFORM.—The term ‘‘online 18 platform’’ means any public-facing website, web ap- 19 plication, or digital application, including a search 20 engine or social network. 21 (5) QUALIFIED HEALTH PLAN.—The term 22 ‘‘qualified health plan’’ has the meaning given such 23 term in section 1301(a) of the Patient Protection 24 and Affordable Care Act (42 U.S.C. 18021(a)). 25 VerDate Sep 11 2014 04:45 Apr 29, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1002.IS S1002 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 1002 IS SEC. 102. FTC OVERSIGHT OF ONLINE HEALTH INSURANCE 1 ADVERTISEMENTS. 2 (a) PROHIBITIONS FOR ONLINE PRIVATE HEALTH 3 INSURANCE ADVERTISEMENT.— 4 (1) IN GENERAL.—Subject to paragraph (3), a 5 person may not post, publish, or otherwise display 6 on the internet a deceptive advertisement for health 7 insurance coverage. 8 (2) DECEPTIVE.—An online advertisement for 9 health insurance coverage shall be considered decep- 10 tive if it— 11 (A) is likely to mislead, or has the effect 12 of misleading, a reasonable individual to believe 13 that such advertisement is made by, through, or 14 on behalf of— 15 (i) Healthcare.gov; 16 (ii) a State or Federal American 17 Health Benefit Exchange described in sec- 18 tions 1311 and 1321 of the Patient Pro- 19 tection and Affordable Care Act (42 20 U.S.C. 18031, 18041); or 21 (iii) any other Federal, State, or local 22 government entity; 23 (B) is likely to mislead, or has the effect 24 of misleading, a reasonable individual about— 25 VerDate Sep 11 2014 04:45 Apr 29, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1002.IS S1002 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 1002 IS (i) the relative cost of enrolling in 1 non-ACA compliant health insurance cov- 2 erage as compared to the cost of enrolling 3 in a qualified health plan; 4 (ii) the relative actuarial value of non- 5 ACA compliant health insurance coverage 6 as compared to a qualified health plan; or 7 (iii) the relative scope of benefits of 8 non-ACA compliant health insurance cov- 9 erage as compared to a qualified health 10 plan; 11 (C) is likely to mislead, or has the effect 12 of misleading, a reasonable individual to believe 13 that the health insurance coverage advertised— 14 (i) complies with the requirements for 15 qualified health plans under the Patient 16 Protection and Affordable Care Act (Public 17 Law 111–148), although the health insur- 18 ance coverage does not meet such require- 19 ments; or 20 (ii) provides coverage for benefits that 21 are not covered by such health insurance 22 coverage; or 23 (D) is likely to mislead, or has the effect 24 of misleading, a reasonable individual regarding 25 VerDate Sep 11 2014 04:45 Apr 29, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1002.IS S1002 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 1002 IS the scope, cost, or duration of coverage of the 1 health insurance coverage being advertised. 2 (3) LIABILITY OF ONLINE PLATFORMS.—If a 3 person who is unrelated to the operator of an online 4 platform pays or arranges to post, publish, or other- 5 wise display an advertisement that violates para- 6 graph (1) on the online platform— 7 (A) such person shall be deemed to have 8 committed the violation of such paragraph; and 9 (B) the operator of the online platform 10 shall not be liable for a violation of such para- 11 graph. 12 (b) ENFORCEMENT BY THE COMMISSION.— 13 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC- 14 TICE.—A violation of this section or a regulation 15 promulgated under this section shall be treated as a 16 violation of a rule defining an unfair or deceptive act 17 or practice under section 18(a)(1)(B) of the Federal 18 Trade Commission Act (15 U.S.C. 57a(a)(1)(B)). 19 (2) POWERS OF THE FEDERAL TRADE COMMIS- 20 SION.— 21 (A) IN GENERAL.—Except as provided in 22 subparagraph (C), the Commission shall enforce 23 this section in the same manner, by the same 24 means, and with the same jurisdiction, powers, 25 VerDate Sep 11 2014 04:45 Apr 29, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1002.IS S1002 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 1002 IS and duties as though all applicable terms and 1 provisions of the Federal Trade Commission 2 Act (15 U.S.C. 41 et seq.) were incorporated 3 into and made a part of this section. 4 (B) PRIVILEGES AND IMMUNITIES.—Any 5 person who violates this section or a regulation 6 promulgated under this section shall be subject 7 to the penalties and entitled to the privileges 8 and immunities provided in the Federal Trade 9 Commission Act (15 U.S.C. 41 et seq.). 10 (C) NONPROFIT ORGANIZATIONS AND IN- 11 SURANCE.—Notwithstanding section 4 or 6 of 12 the Federal Trade Commission Act (15 U.S.C. 13 44, 46), section 2 of McCarran-Ferguson Act 14 (15 U.S.C. 1012), or any other jurisdictional 15 limitation of the Commission, the Commission 16 shall also enforce this section and the regula- 17 tions promulgated under this section, in the 18 same manner provided in subparagraphs (A) 19 and (B) of this paragraph, with respect to— 20 (i) organizations not organized to 21 carry on business for their own profit or 22 that of their members; and 23 (ii) the business of insurance, and 24 persons engaged in such business. 25 VerDate Sep 11 2014 04:45 Apr 29, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1002.IS S1002 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 1002 IS (D) CONTINUED APPLICABILITY OF STATE 1 LAW.— 2 (i) IN GENERAL.—This section shall 3 only supersede a State law to the extent 4 that this section is inconsistent with other- 5 wise applicable State law. 6 (ii) CLARIFICATION.—A State law 7 that provides additional protections to con- 8 sumers than those protections provided in 9 this Act shall not be considered incon- 10 sistent with this Act for purposes of clause 11 (i). 12 (3) RULEMAKING.—The Commission shall pro- 13 mulgate in accordance with section 553 of title 5, 14 United States Code, such rules as may be necessary 15 to carry out this Act. 16 (4) AUTHORITY PRESERVED.—Nothing in this 17 Act shall be construed to limit the authority of the 18 Commission under any other provision of law. 19 (c) GAO STUDY AND REPORT.— 20 (1) STUDY.—The Comptroller General of the 21 United States shall conduct a study on the effective- 22 ness of the Commission’s oversight of online adver- 23 tisements for health insurance coverage pursuant to 24 this section during the period which begins on the 25 VerDate Sep 11 2014 04:45 Apr 29, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1002.IS S1002 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 1002 IS date of enactment of this Act and ends 3 years 1 thereafter. Such study shall include the following: 2 (A) The number of enforcement actions 3 during such period taken by the Commission re- 4 lated to the oversight of online advertisements 5 for health insurance coverage under this sec- 6 tion. 7 (B) A description of the outcome of any 8 such enforcement action. 9 (C) A description of any barrier to the 10 Commission’s enforcement authority under this 11 section in relation to such advertisements. 12 (D) A description of how the Commission’s 13 oversight of online advertisements for health in- 14 surance coverage has protected consumers, in- 15 cluding through means other than enforcement 16 actions. 17 (2) REPORT.—Not later than 4 years after the 18 date of enactment of this Act, the Comptroller Gen- 19 eral of the United States shall submit to Congress 20 a report containing the results of the study con- 21 ducted under paragraph (1), together with rec- 22 ommendations for such legislation and administra- 23 tive action as the Comptroller General determines 24 appropriate. 25 VerDate Sep 11 2014 04:45 Apr 29, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1002.IS S1002 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 1002 IS TITLE II—WARNINGS AND RE- 1 PORTING REQUIREMENTS 2 FOR NONCOMPREHENSIVE 3 HEALTH PLANS 4 SEC. 201. DEFINITIONS. 5 In this title: 6 (1) APPLICABLE HEALTH PLAN.—The term 7 ‘‘applicable health plan’’— 8 (A) means (except as provided in subpara- 9 graph (B))— 10 (i) health insurance coverage in the 11 individual market providing excepted bene- 12 fits, excluding— 13 (I) automobile liability insurance 14 described in paragraph (1)(C) of sec- 15 tion 2791(c) of the Public Health 16 Service Act (42 U.S.C. 300gg–91(c)); 17 (II) automobile medical payment 18 insurance described in paragraph 19 (1)(E) of such section; 20 (III) limited scope dental or vi- 21 sion benefits described in paragraph 22 (2)(A) of such section; 23 VerDate Sep 11 2014 04:45 Apr 29, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1002.IS S1002 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 1002 IS (IV) workers’ compensation, or 1 similar insurance, described in para- 2 graph (1)(D) of such section; 3 (V) coverage for on-site medical 4 clinics described in paragraph (1)(G) 5 of such section; or 6 (VI) medicare supplemental 7 health insurance (as defined under 8 section 1882(g)(1) of the Social Secu- 9 rity Act) or coverage supplemental to 10 the coverage provided under chapter 11 55 of title 10, United States Code; 12 (ii) student health insurance coverage, 13 as defined in section 147.145(a) of title 14 45, Code of Federal Regulations (or a suc- 15 cessor regulation); 16 (iii) short-term limited duration insur- 17 ance, as defined in section 144.103 of title 18 45, Code of Federal Regulations (or a suc- 19 cessor regulation); 20 (iv) any health care arrangement for 21 benefits or payments for medical care of- 22 fered to individuals through an association; 23 and 24 VerDate Sep 11 2014 04:45 Apr 29, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1002.IS S1002 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 1002 IS (v) any other health care arrangement 1 for benefits or payments for medical care 2 (other than under a Federal health care 3 program) that is not health insurance cov- 4 erage, or a group health plan, for purposes 5 of title XXVII of the Public Health Service 6 Act (42 U.S.C. 300gg et seq.), part 7 of 7 subtitle B of title I of the Employee Re- 8 tirement Income Security Act of 1974 (29 9 U.S.C. 1181 et seq.), or chapter 100 of the 10 Internal Revenue Code of 1986, including 11 such an arrangement offered by a State 12 farm bureau or a health care sharing min- 13 istry; and 14 (B) does not include— 15 (i) any group health plan; 16 (ii) any grandfathered health plan; 17 and 18 (iii) any health insurance coverage to 19 which the transitional policy, described in 20 the letter issued on November 14, 2013, by 21 the Centers for Medicare & Medicaid Serv- 22 ices to insurance commissioners, or an ex- 23 tension of such policy, applies. 24 VerDate Sep 11 2014 04:45 Apr 29, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1002.IS S1002 pbinns on DSKJLVW7X2PROD with BILLS 13 •S 1002 IS (2) APPLICABLE STATE AUTHORITY; EXCEPTED 1 BENEFITS; EXCHANGE.—The terms ‘‘applicable 2 State authority’’, ‘‘excepted benefits’’, and ‘‘Ex- 3 change’’ have the meanings given such terms in sec- 4 tion 2791 of the Public He [Text truncated for display. 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