States will have primary enforcement authority for the No Surprises Act, both of issuers who offer health insurance coverage in the individual or group markets in the state, and for facilities or providers offering services in the state. If the state does not provide adequate enforcement, the Center for Medicare and Medicaid Services (CMS) will take over enforcement.
- With regard to health plans, CMS and states may conduct random, targeted, market conduct investigations to ensure compliance. This includes audits of calculations of the QPA, and other investigations to ensure that consumers are not overpaying, without relying solely on complaints or other information indicating that there has been a violation.
- CMS may also conduct random or targeted investigations of providers or facilities.
- The enforcing authority must provide notice of a violation, including the information that prompted the investigation, and the potential for a civil monetary penalty or imposition of a plan of corrective action. The violator will typically have 14 days to respond, although that period can be shortened to 24 hours or extended to 30 days or more depending on the circumstances.
- The No Surprises Act imposes civil monetary penalties of up to $10,000. In determining what penalty to impose, CMS may consider a variety of factors, including the degree of culpability, history and frequency of prior violations, the impact on affected individuals, the gravity of the violation, and whether any violations have been corrected. The penalty will be waived if a provider or facility does not knowingly violate, and should not have reasonably known it violated, the act, and reimburses any incorrect payments plus interest. There is also a hardship exemption to the civil monetary penalties.
- Within 30 days, a provider or facility may request a hearing regarding the civil monetary penalty with an administrative law judge, and may also appeal the ruling of the administrative law judge to the U.S. Court of Appeals for the circuit in which the provider or facilities provides services or where the violation occurred.