[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 5535 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
2d Session
S. 5535
To amend title XXVII of the Public Health Service Act, the Employee
Retirement Income Security Act of 1974, and the Internal Revenue Code
of 1986 to increase penalties for group health plans and health
insurance issuers for practices that violate balance billing
requirements, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 16, 2024
Mr. Marshall (for himself and Mr. Bennet) introduced the following
bill; which was read twice and referred to the Committee on Health,
Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To amend title XXVII of the Public Health Service Act, the Employee
Retirement Income Security Act of 1974, and the Internal Revenue Code
of 1986 to increase penalties for group health plans and health
insurance issuers for practices that violate balance billing
requirements, 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 ``No Surprises Act Enforcement Act''.
SEC. 2. INCREASING PENALTIES FOR GROUP HEALTH PLANS AND HEALTH
INSURANCE ISSUERS FOR PRACTICES THAT VIOLATE BALANCE
BILLING REQUIREMENTS.
(a) PHSA.--Section 2723(b)(2)(C) of the Public Health Service Act
(42 U.S.C. 300gg-22(b)(2)(C)) is amended--
(1) in clause (i), by inserting ``(or, in the case of such
a failure with respect to a provision specified in clause (iv),
$10,000 per failure)'' after ``$100''; and
(2) by adding at the end the following new clause:
``(iv) Provisions specified.--For purposes
of clause (i), the provisions specified in this
clause are the following:
``(I) Subparagraphs (A) and (B) of
section 2799A-1(a)(1).
``(II) Clauses (i), (ii), (iii),
and (v) of section 2799A-1(a)(1)(C).
``(III) Subparagraphs (A), (B), and
(E) of section 2799A-1(b)(1).
``(IV) Paragraphs (1) and (2) of
section 2799A-2(a).''.
(b) ERISA.--Section 502 of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1131) is amended--
(1) in subsection (a)(6), by striking ``or (9)'' and
inserting ``(9), or (12)'';
(2) in subsection (b)(3)--
(A) by inserting ``, (c)(12),'' after ``subsections
(c)(9)''; and
(B) by inserting ``or (c)(12)'' after ``under
subsection (c)(9)''; and
(3) in subsection (c), by adding at the end the following
new paragraph:
``(12) The Secretary may assess a civil penalty against any group
health plan or health insurance issuer offering group health insurance
coverage of not more than $10,000 for each violation for each
individual with respect to which such plan or coverage fails to comply
with one of the following provisions:
``(A) Subparagraphs (A) and (B) of section 716(a)(1).
``(B) Clauses (i), (ii), (iii), and (v) of section
716(a)(1)(C).
``(C) Subparagraphs (A), (B), and (E) of section 716(b)(1).
``(D) Paragraphs (1) and (2) of section 717(a).''.
(c) IRC.--Section 4980D(b) of the Internal Revenue Code of 1986 is
amended--
(1) in paragraph (1), by inserting ``(or, in the case of
such a failure with respect to a provision specified in
paragraph (4), $10,000 per failure)'' after ``$100''; and
(2) by adding at the end the following new paragraph:
``(4) Provisions specified.--For purposes of paragraph (1),
the provisions specified in this paragraph are the following:
``(A) Subparagraphs (A) and (B) of section
9816(a)(1).
``(B) Clauses (i), (ii), (iii), and (v) of section
9816(a)(1)(C).
``(C) Subparagraphs (A), (B), and (E) of section
9816(b)(1).
``(D) Paragraphs (1) and (2) of section 9817(a).''.
SEC. 3. ADDITIONAL PENALTIES FOR LATE PAYMENT OR NON-PAYMENT AFTER IDR
ENTITY PAYMENT DETERMINATION.
(a) PHSA.--
(1) Emergency and nonemergency services.--Section 2799A-
1(c)(6) of the Public Health Service Act (42 U.S.C. 300gg-
111(c)(6)) is amended--
(A) in the paragraph heading, by inserting ``;
penalty for late payment or non-payment'' after
``payment'';
(B) by striking ``The total plan'' and inserting
the following:
``(A) Timing of payment.--The total plan''; and
(C) by adding at the end the following new
subparagraphs:
``(B) Notification.--In the case of a plan or
coverage required to make a payment pursuant to a
determination described in subparagraph (A), such plan
or coverage shall submit to the Secretary a
notification of such payment as of the date such
payment is made in a manner specified by the Secretary.
``(C) Penalty for late payment or non-payment.--
``(i) In general.--In the case of a plan or
coverage that has not made the required payment
described in subparagraph (A) with respect to
an item or service in the time period described
in such subparagraph, in addition to making
such payment, such plan or coverage shall also
pay to the nonparticipating provider or
facility an amount that is three times the
difference between--
``(I) the initial payment (or, in
the case of a notice of denial of
payment, $0) described in subsection
(a)(1)(C)(iv)(I) or (b)(1)(C), as
applicable; and
``(II) the out-of-network rate (as
defined in subsection (a)(3)(K)) for
such item or service (less any cost
sharing required to be paid by the
individual receiving such item or
service).
``(ii) Interest.--Such late payment or non-
payment (as applicable) shall also be subject
to interest in a manner specified by the
Secretary.''.
(2) Air ambulance services.--Section 2799A-2(b)(6) of the
Public Health Service Act (42 U.S.C. 300gg-112(b)(6)) is
amended--
(A) in the paragraph heading, by inserting ``;
penalty for late payment or non-payment'' after
``payment'';
(B) by striking ``The total plan'' and inserting
the following:
``(A) Timing of payment.--The total plan''; and
(C) by adding at the end the following new
subparagraphs:
``(B) Notification.--In the case of a plan or
coverage required to make a payment pursuant to a
determination described in subparagraph (A), such plan
or coverage shall submit to the Secretary a
notification of such payment as of the date such
payment is made in a manner specified by the Secretary.
``(C) Penalty for late payment or non-payment.--
``(i) In general.--In the case of a plan or
coverage that has not made the required payment
described in subparagraph (A) with respect to
an item or service in the time period described
in such subparagraph, in addition to making
such payment, such plan or coverage shall also
pay to the nonparticipating provider an amount
that is three times the difference between--
``(I) the initial payment (or, in
the case of a notice of denial of
payment, $0) described in subsection
(a)(3)(A); and
``(II) the out-of-network rate (as
defined in section 2799-1(a)(3)(K)) for
such item or service (less any cost
sharing required to be paid by the
individual receiving such item or
service).
``(ii) Interest.--Such late payment or non-
payment (as applicable) shall also be subject
to interest in a manner specified by the
Secretary.''.
(b) ERISA.--
(1) Emergency and nonemergency services.--Section 716(c)(6)
of the Employee Retirement Income Security Act of 1974 (29
U.S.C. 1185e(c)(6)) is amended--
(A) in the paragraph heading, by inserting ``;
penalty for late payment or non-payment'' after
``payment'';
(B) by striking ``The total plan'' and inserting
the following:
``(A) Timing of payment.--The total plan''; and
(C) by adding at the end the following new
subparagraphs:
``(B) Notification.--In the case of a plan or
coverage required to make a payment pursuant to a
determination described in subparagraph (A), such plan
or coverage shall submit to the Secretary a
notification of such payment as of the date such
payment is made in a manner specified by the Secretary.
``(C) Penalty for late payment or non-payment.--
``(i) In general.--In the case of a plan or
coverage that has not made the required payment
described in subparagraph (A) with respect to
an item or service in the time period described
in such subparagraph, in addition to making
such payment, such plan or coverage shall also
pay to the nonparticipating provider or
facility an amount that is three times the
difference between--
``(I) the initial payment (or, in
the case of a notice of denial of
payment, $0) described in subsection
(a)(1)(C)(iv)(I) or (b)(1)(C), as
applicable; and
``(II) the out-of-network rate (as
defined in subsection (a)(3)(K)) for
such item or service (less any cost
sharing required to be paid by the
individual receiving such item or
service).
``(ii) Interest.--Such late payment or non-
payment (as applicable) shall also be subject
to interest in a manner specified by the
Secretary.''.
(2) Air ambulance services.--Section 717(b)(6) of the
Employee Retirement Income Security Act of 1974 (29 U.S.C.
1185f(b)(6)) is amended--
(A) in the paragraph heading, by inserting ``;
penalty for late payment or non-payment'' after
``payment'';
(B) by striking ``The total plan'' and inserting
the following:
``(A) Timing of payment.--The total plan''; and
(C) by adding at the end the following new
subparagraphs:
``(B) Notification.--In the case of a plan or
coverage required to make a payment pursuant to a
determination described in subparagraph (A), such plan
or coverage shall submit to the Secretary a
notification of such payment as of the date such
payment is made in a manner specified by the Secretary.
``(C) Penalty for late payment or non-payment.--
``(i) In general.--In the case of a plan or
coverage that has not made the required payment
described in subparagraph (A) with respect to
an item or service in the time period described
in such subparagraph, in addition to making
such payment, such plan or coverage shall also
pay to the nonparticipating provider an amount
that is three times the difference between--
``(I) the initial payment (or, in
the case of a notice of denial of
payment, $0) described in subsection
(a)(3)(A); and
``(II) the out-of-network rate (as
defined in section 716(a)(3)(K)) for
such item or service (less any cost
sharing required to be paid by the
individual receiving such item or
service).
``(ii) Interest.--Such late payment or non-
payment (as applicable) shall also be subject
to interest in a manner specified by the
Secretary.''.
(c) IRC.--
(1) Emergency and nonemergency services.--Section
9816(c)(6) of the Internal Revenue Code of 1986 is amended--
(A) in the paragraph heading, by inserting ``;
penalty for late payment or non-payment'' after
``payment'';
(B) by striking ``The total plan'' and inserting
the following:
``(A) Timing of payment.--The total plan''; and
(C) by adding at the end the following new
subparagraphs:
``(B) Notification.--In the case of a plan required
to make a payment pursuant to a determination described
in subparagraph (A), such plan shall submit to the
Secretary a notification of such payment as of the date
such payment is made in a manner specified by the
Secretary.
``(C) Penalty for late payment or non-payment.--
``(i) In general.--In the case of a plan
that has not made the required payment
described in subparagraph (A) with respect to
an item or service in the time period described
in such subparagraph, in addition to making
such payment, such plan shall also pay to the
nonparticipating provider or facility an amount
that is three times the difference between--
``(I) the initial payment (or, in
the case of a notice of denial of
payment, $0) described in subsection
(a)(1)(C)(iv)(I) or (b)(1)(C), as
applicable; and
``(II) the out-of-network rate (as
defined in subsection (a)(3)(K)) for
such item or service (less any cost
sharing required to be paid by the
individual receiving such item or
service).
``(ii) Interest.--Such late payment or non-
payment (as applicable) shall also be subject
to interest in a manner specified by the
Secretary.''.
(2) Air ambulance services.--Section 9817(b)(6) of the
Internal Revenue Code of 1986 is amended--
(A) in the paragraph heading, by inserting ``;
penalty for late payment or non-payment'' after
``payment'';
(B) by striking ``The total plan'' and inserting
the following:
``(A) Timing of payment.--The total plan''; and
(C) by adding at the end the following new
subparagraphs:
``(B) Notification.--In the case of a plan required
to make a payment pursuant to a determination described
in subparagraph (A), such plan shall submit to the
Secretary a notification of such payment as of the date
such payment is made in a manner specified by the
Secretary.
``(C) Penalty for late payment or non-payment.--
``(i) In general.--In the case of a plan
that has not made the required payment
described in subparagraph (A) with respect to
an item or service in the time period described
in such subparagraph, in addition to making
such payment, such plan shall also pay to the
nonparticipating provider an amount that is
three times the difference between--
``(I) the initial payment (or, in
the case of a notice of denial of
payment, $0) described in subsection
(a)(3)(A); and
``(II) the out-of-network rate (as
defined in section 9816(a)(3)(K)) for
such item or service (less any cost
sharing required to be paid by the
individual receiving such item or
service).
``(ii) Interest.--Such late payment or non-
payment (as applicable) shall also be subject
to interest in a manner specified by the
Secretary.''.
SEC. 4. TRANSPARENCY REPORTING REQUIREMENTS.
(a) PHSA.--Section 2799A-1(a)(2)(A)(iii) of the Public Health
Service Act (42 U.S.C. 300gg-111(a)(2)(A)(iii)) is amended to read as
follows:
``(iii) Reporting.--
``(I) Initial reporting.--Beginning
for 2022 and ending on December 31 of
the calendar year in which the No
Surprises Act Enforcement Act is
enacted, the Secretary shall annually
submit to Congress a report on the
number of plans and issuers with
respect to which audits were conducted
during such year pursuant to this
subparagraph.
``(II) Subsequent reporting.--
``(aa) In general.--With
respect to the first calendar
year following the date of the
enactment of the No Surprises
Act Enforcement Act, not later
than February 1 of such year,
and every 6 months thereafter,
the Secretary, in coordination
with the Secretary of Labor and
the Secretary of the Treasury,
shall submit to the Committee
on Ways and Means, the
Committee on Energy and
Commerce, and the Committee on
Education and the Workforce of
the House of Representatives,
and the Committee on Finance
and the Committee on Health,
Education, Labor and Pensions
of the Senate, a report on any
audits conducted pursuant to
this subparagraph during the
applicable reporting period,
and any enforcement actions
taken during such period in
accordance with the provisions
of this part, including--
``(AA) the total
number of audits
conducted under this
subparagraph;
``(BB) the number
of audits conducted
pursuant to clause
(ii)(I);
``(CC) the number
of complaints submitted
by providers and by
participants,
beneficiaries, and
enrollees with respect
to a violation of this
part;
``(DD) any
enforcement actions
taken as a result of a
complaint submitted by
a provider or by a
participant, a
beneficiary, or an
enrollee, with respect
to the provisions of
this part;
``(EE) the total
number of, and the
aggregate dollar amount
of, any civil monetary
penalties issued in
accordance with this
part;
``(FF) a summary of
any non-monetary
corrective action taken
against a group health
plan or health
insurance issuer
offering group or
individual health
insurance coverage for
a violation of this
part; and
``(GG) a
description of the 3
most commonly reported
violations of this
part.
``(bb) Applicable reporting
period.--For purposes of this
subclause, the term `applicable
reporting period' means the 6
month period prior to each
report submitted under item
(aa).''.
(b) IRC.--Section 9816(a)(2)(A)(iii) of the Internal Revenue Code
of 1986 is amended to read as follows:
``(iii) Reporting.--
``(I) Initial reporting.--Beginning
for 2022 and ending on December 31 of
the calendar year in which the No
Surprises Act Enforcement Act is
enacted, the Secretary shall annually
submit to Congress a report on the
number of plans with respect to which
audits were conducted during such year
pursuant to this subparagraph.
``(II) Subsequent reporting.--
``(aa) In general.--With
respect to the first calendar
year following the date of the
enactment of the No Surprises
Act Enforcement Act, not later
than February 1 of such year,
and every 6 months thereafter,
the Secretary, in coordination
with the Secretary of Labor and
the Secretary of Health and
Human Services, shall submit to
the Committee on Ways and
Means, the Committee on Energy
and Commerce, and the Committee
on Education and the Workforce
of the House of
Representatives, and the
Committee on Finance and the
Committee on Health, Education,
Labor and Pensions of the
Senate, a report on audits
performed pursuant to this
subparagraph during the
applicable reporting period,
and any enforcement actions
taken during such period in
accordance with the provisions
of an applicable section,
including--
``(AA) the total
number of audits
conducted under this
subparagraph;
``(BB) the number
of audits conducted
pursuant to clause
(ii)(I);
``(CC) the number
of complaints submitted
by providers and by
participants and
beneficiaries with
respect to a violation
of an applicable
section;
``(DD) any
enforcement actions
taken pursuant to a
violation of an
applicable section;
``(EE) the total
number of, and the
aggregate dollar amount
of, any civil monetary
penalties issued in
accordance with an
applicable section;
``(FF) a summary of
any non-monetary
corrective action taken
against a group health
plan for a violation of
an applicable section;
and
``(GG) a
description of the 3
most commonly reported
violations of an
applicable section.
``(bb) Definitions.--In
this subclause:
``(AA) Applicable
reporting period.--The
term `applicable
reporting period' means
the 6 month period
prior to each report
submitted under item
(aa).
``(BB) Applicable
section.--The term
`applicable section'
means this section and
each of sections 9817
through 9825.''.
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