§ 300gg–22.
(b)
Secretarial enforcement authority
(1)
Limitation
The provisions of this subsection shall apply to enforcement of a provision (or provisions) of this part or part D only—
(A)
as provided under subsection (a)(2); and
(B)
with respect to individual health insurance coverage or group health plans that are non-Federal governmental plans.
(2)
Imposition of penalties
In the cases described in paragraph (1)—
(B)
Liability for penalty
In the case of a failure by—
(i)
a health insurance issuer, the issuer is liable for such penalty, or
(ii)
a group health plan that is a non-Federal governmental plan which is—
(I)
sponsored by 2 or more employers, the plan is liable for such penalty, or
(II)
not so sponsored, the employer is liable for such penalty.
(C)
Amount of penalty
(ii)
Considerations in imposition
(iii)
Limitations
(I)
Penalty not to apply where failure not discovered exercising reasonable diligence
(II)
Penalty not to apply to failures corrected within 30 days
(D)
Administrative review
(i)
Opportunity for hearing
(E)
Judicial review
(i)
Filing of action for review
(ii)
Certification of administrative record
(iii)
Standard for review
(F)
Failure to pay assessment; maintenance of action
(i)
Failure to pay assessment
(3)
Enforcement authority relating to genetic discrimination
(B)
Amount
(ii)
Noncompliance period
For purposes of this paragraph, the term “noncompliance period” means, with respect to any failure, the period—
(I)
beginning on the date such failure first occurs; and
(II)
ending on the date the failure is corrected.
(C)
Minimum penalties where failure discovered
Notwithstanding clauses (i) and (ii) of subparagraph (D):
(i)
In general
In the case of 1 or more failures with respect to an individual—
(I)
which are not corrected before the date on which the plan receives a notice from the Secretary of such violation; and
(II)
which occurred or continued during the period involved;
the amount of penalty imposed by subparagraph (A) by reason of such failures with respect to such individual shall not be less than $2,500.
(ii)
Higher minimum penalty where violations are more than de minimis
(D)
Limitations
(i)
Penalty not to apply where failure not discovered exercising reasonable diligence
(ii)
Penalty not to apply to failures corrected within certain periods
No penalty shall be imposed by subparagraph (A) on any failure if—
(I)
such failure was due to reasonable cause and not to willful neglect; and
(II)
such failure is corrected during the 30-day period beginning on the first date the person otherwise liable for such penalty knew, or exercising reasonable diligence would have known, that such failure existed.
(iii)
Overall limitation for unintentional failures
In the case of failures which are due to reasonable cause and not to willful neglect, the penalty imposed by subparagraph (A) for failures shall not exceed the amount equal to the lesser of—
(I)
10 percent of the aggregate amount paid or incurred by the employer (or predecessor employer) during the preceding taxable year for group health plans; or
(II)
$500,000.
([July 1, 1944, ch. 373], title XXVII, § 2723, formerly § 2722, as added [Pub. L. 104–191, title I, § 102(a)], Aug. 21, 1996, [110 Stat. 1968]; amended [Pub. L. 110–233, title I, § 102(a)(5)], May 21, 2008, [122 Stat. 891]; renumbered § 2736, renumbered § 2723, and amended [Pub. L. 111–148, title I], §§ 1001(4), 1563(c)(13), formerly § 1562(c)(13), title X, § 10107(b)(1), Mar. 23, 2010, [124 Stat. 130], 269, 911; [Pub. L. 116–260, div. BB, title I, § 102(a)(3)(C)], Dec. 27, 2020, [134 Stat. 2772].)