II 118th CONGRESS 2d Session S. 5535 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.

1. Short title This Act may be cited as the No Surprises Act Enforcement Act . 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). . 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. . 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. .