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[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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