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Section 9010

SEC. 9010. IMPOSITION OF ANNUAL FEE ON HEALTH INSURANCE PROVIDERS.

[a] Imposition of Fee-

[1] IN GENERAL- Each covered entity engaged in the business of providing health insurance shall pay to the Secretary not later than the annual payment date of each calendar year beginning after 2009 a fee in an amount determined under subsection [b].

[2] ANNUAL PAYMENT DATE- For purposes of this section, the term 'annual payment date' means with respect to any calendar year the date determined by the Secretary, but in no event later than September 30 of such calendar year.

[b] Determination of Fee Amount-

[1] IN GENERAL- With respect to each covered entity, the fee under this section for any calendar year shall be equal to an amount that bears the same ratio to $6,700,000,000 as--

[A] the sum of--

[i] the covered entity's net premiums written with respect to health insurance for any United States health risk that are taken into account during the preceding calendar year, plus

[ii] 200 percent of the covered entity's third party administration agreement fees that are taken into account during the preceding calendar year, bears to

[B] the sum of--

[i] the aggregate net premiums written with respect to such health insurance of all covered entities that are taken into account during such preceding calendar year, plus

[ii] 200 percent of the aggregate third party administration agreement fees of all covered entities that are taken into account during such preceding calendar year.

[2] AMOUNTS TAKEN INTO ACCOUNT- For purposes of paragraph [1]--

[A] NET PREMIUMS WRITTEN- The net premiums written with respect to health insurance for any United States health risk that are taken into account during any calendar year with respect to any covered entity shall be determined in accordance with the following table:

------------------------------------------------------------------------------------------------------------------------------------------------------------------ With respect to a covered entity's net premiums written during the calendar year that are: The percentage of net premiums written that are taken into account is: ------------------------------------------------------------------------------------------------------------------------------------------------------------------ Not more than $25,000,000 0 percent More than $25,000,000 but not more than $50,000,000 50 percent More than $50,000,000 100 percent. ------------------------------------------------------------------------------------------------------------------------------------------------------------------

[B] THIRD PARTY ADMINISTRATION AGREEMENT FEES- The third party administration agreement fees that are taken into account during any calendar year with respect to any covered entity shall be determined in accordance with the following table:

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ With respect to a covered entity's third party administration agreement fees during the calendar year that are: The percentage of third party administration agreement fees that are taken into account is: ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ Not more than $5,000,000 0 percent More than $5,000,000 but not more than $10,000,000 50 percent More than $10,000,000 100 percent. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

[3] SECRETARIAL DETERMINATION- The Secretary shall calculate the amount of each covered entity's fee for any calendar year under paragraph [1]. In calculating such amount, the Secretary shall determine such covered entity's net premiums written with respect to any United States health risk and third party administration agreement fees on the basis of reports submitted by the covered entity under subsection [g] and through the use of any other source of information available to the Secretary.

[c] Covered Entity-

[1] IN GENERAL- For purposes of this section, the term 'covered entity' means any entity which provides health insurance for any United States health risk.

[2] EXCLUSION- Such term does not include--

[A] any employer to the extent that such employer self-insures its employees' health risks, or

[B] any governmental entity [except to the extent such an entity provides health insurance coverage through the community health insurance option under section 1323].

[3] CONTROLLED GROUPS-

[A] IN GENERAL- For purposes of this subsection, all persons treated as a single employer under subsection [a] or [b] of section 52 of the Internal Revenue Code of 1986 or subsection [m] or [o] of section 414 of such Code shall be treated as a single covered entity [or employer for purposes of paragraph [2]].

[B] INCLUSION OF FOREIGN CORPORATIONS- For purposes of subparagraph [A], in applying subsections [a] and [b] of section 52 of such Code to this section, section 1563 of such Code shall be applied without regard to subsection [b][2][C] thereof.

[d] United States Health Risk- For purposes of this section, the term 'United States health risk' means the health risk of any individual who is--

[1] a United States citizen,

[2] a resident of the United States [within the meaning of section 7701[b][1][A] of the Internal Revenue Code of 1986], or

[3] located in the United States, with respect to the period such individual is so located.

[e] Third Party Administration Agreement Fees- For purposes of this section, the term 'third party administration agreement fees' means, with respect to any covered entity, amounts received from an employer which are in excess of payments made by such covered entity for health benefits under an arrangement under which such employer self-insures the United States health risk of its employees.

[f] Tax Treatment of Fees- The fees imposed by this section--

[1] for purposes of subtitle F of the Internal Revenue Code of 1986, shall be treated as excise taxes with respect to which only civil actions for refund under procedures of such subtitle shall apply, and

[2] for purposes of section 275 of such Code shall be considered to be a tax described in section 275[a][6].

[g] Reporting Requirement-

[1] IN GENERAL- Not later than the date determined by the Secretary following the end of any calendar year, each covered entity shall report to the Secretary, in such manner as the Secretary prescribes, the covered entity's net premiums written with respect to health insurance for any United States health risk and third party administration agreement fees for such calendar year.

[2] PENALTY FOR FAILURE TO REPORT-

[A] IN GENERAL- In the case of any failure to make a report containing the information required by paragraph [1] on the date prescribed therefor [determined with regard to any extension of time for filing], unless it is shown that such failure is due to reasonable cause, there shall be paid by the covered entity failing to file such report, an amount equal to--

[i] $10,000, plus

[ii] the lesser of--

[I] an amount equal to $1,000, multiplied by the number of days during which such failure continues, or

[II] the amount of the fee imposed by this section for which such report was required.

[B] TREATMENT OF PENALTY- The penalty imposed under subparagraph [A]--

[i] shall be treated as a penalty for purposes of subtitle F of the Internal Revenue Code of 1986,

[ii] shall be paid on notice and demand by the Secretary and in the same manner as tax under such Code, and

[iii] with respect to which only civil actions for refund under procedures of such subtitle F shall apply.

[h] Additional Definitions- For purposes of this section--

[1] SECRETARY- The term 'Secretary' means the Secretary of the Treasury or the Secretary's delegate.

[2] UNITED STATES- The term 'United States' means the several States, the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States.

[3] HEALTH INSURANCE- The term 'health insurance' shall not include insurance for long-term care or disability.

[i] Guidance- The Secretary shall publish guidance necessary to carry out the purposes of this section.

[j] Application of Section- This section shall apply to any net premiums written after December 31, 2008, with respect to health insurance for any United States health risk, and any third party administration agreement fees received after such date.