[House Report 117-519]
[From the U.S. Government Publishing Office]


117th Congress     }                                 {      Report
                        HOUSE OF REPRESENTATIVES
 2d Session        }                                 {      117-519

======================================================================
 
   RESOLUTION OF INQUIRY DIRECTING THE SECRETARY OF HEALTH AND HUMAN 
 SERVICES TO PROVIDE TO THE HOUSE OF REPRESENTATIVES CERTAIN DOCUMENTS 
    IN THE SECRETARY'S POSSESSION REGARDING THE REINTERPRETATION OF 
SECTIONS 36B(C)(2)(C)(I)(II) AND 5000A(E)(1)(B) OF THE INTERNAL REVENUE 
    CODE OF 1986, COMMONLY KNOWN AS THE ``FIX TO THE FAMILY GLITCH''

                                _______
                                

 September 28, 2022.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

Mr. Neal, from the Committee on Ways and Means, submitted the following

                             ADVERSE REPORT

                             together with

                            DISSENTING VIEWS

                      [To accompany H. Res. 1262]

    The Committee on Ways and Means, to whom was referred the 
resolution (H. Res. 1262) of inquiry directing the Secretary of 
Health and Human Services to provide to the House of 
Representatives certain documents in the Secretary's possession 
regarding the reinterpretation of sections 36B(c)(2)(C)(i)(II) 
and 5000A(e)(1)(B) of the Internal Revenue Code of 1986, 
commonly known as the ``fix to the family glitch'', having 
considered the same, reports unfavorably thereon without 
amendment and recommends that the resolution not be agreed to.

                                CONTENTS

                                                                   Page
  I. SUMMARY AND BACKGROUND...........................................2
          A. Purpose and Summary.................................     2
          B. Background and Need for Legislation.................     2
          C. Legislative History.................................     3
 II. EXPLANATION OF THE BILL..........................................4
III. VOTES OF THE COMMITTEE...........................................4
 IV. BUDGET EFFECTS OF THE BILL.......................................4
          A. Committee Estimate of Budgetary Effects.............     4
          B. Statement Regarding New Budget Authority and Tax 
              Expenditures Budget Authority......................     5
          C. Cost Estimate Prepared by the Congressional Budget 
              Office.............................................     5
  V. OTHER MATTERS TO BE DISCUSSED UNDER THE RULES OF THE HOUSE.......5
          A. Committee Oversight Findings and Recommendations....     5
          B. Statement of General Performance Goals and 
              Objectives.........................................     5
          C. Information Relating to Unfunded Mandates...........     5
          D. Advisory Committee Statement........................     5
          E. Applicability to Legislative Branch.................     5
          F. Congressional Earmarks, Limited Tax Benefits, and 
              Limited Tariff Benefits............................     5
          G. Hearings............................................     6
 VI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED............6
VII. DISSENTING VIEWS.................................................7

                       I. SUMMARY AND BACKGROUND


                         A. Purpose and Summary

    H. Res. 1262 requests that the Secretary of Health and 
Human Services provide the House of Representatives certain 
documents in the Secretary's possession regarding the 
reinterpretation of sections 36B(c)(2)(C)(i)(II) and 
5000A(e)(1)(B) of the Internal Revenue Code of 1986, commonly 
known as the ``fix to the family glitch.''

                 B. Background and Need for Legislation

    On July 26, 2022, H. Res. 1262 was introduced by 
Representative Vern Buchanan. H. Res. 1262 is a resolution of 
inquiry, which is a means used by the House to obtain certain 
factual information from the Executive Branch. Under clause 7 
of rule XIII, a resolution of inquiry is subject to a motion to 
discharge from committee if the resolution is not reported by 
the committee to which it was referred within 14 legislative 
days of its introduction.\1\ Accordingly, the Committee on Ways 
and Means scheduled a markup of H. Res. 1262 within the 14-day 
period.
---------------------------------------------------------------------------
    \1\Rules of the House of Representatives Rule XIII, clause 7.
---------------------------------------------------------------------------
    The Committee reported the resolution adversely because, 
among other flaws, the resolution is directed at the wrong 
federal agency. The Department of Health and Human Services 
(HHS) is not in charge of interpreting the provisions of the 
Patient Protection and Affordable Care Act of 2010 (ACA) 
contained in the Internal Revenue Code (IRC). Given that the 
resolution seeks documents regarding the interpretation of 
certain provisions under the IRC, the resolution is entirely 
misdirected. This resolution asks the Secretary of HHS to 
furnish to the House of Representatives documents which the 
Secretary neither possesses nor has authority over. The 
jurisdiction of interpreting provisions under the IRC is solely 
the responsibility of the Department of the Treasury and the 
Internal Revenue Service. Therefore, this resolution as 
introduced errs in its understanding of the authorities 
possessed by federal agencies of the Executive Branch.
    Furthermore, this resolution would do nothing to help lower 
health care costs for hardworking American families. Under 
section 36B of the IRC as added by the ACA, Americans can 
qualify for a premium tax credit (PTC) to lower their monthly 
health insurance premiums through private insurance plans 
purchased on the ACA Marketplaces. Eligibility for the PTC is 
based on several factors, including income and whether someone 
is eligible for other forms of health coverage, including an 
offer of ``affordable'' employer-sponsored coverage. A February 
2013 regulation based the definition of ``affordable'' offer of 
employer-sponsored coverage on the employee's share of premium 
for self-only coverage, not family coverage.\2\ As a result, 
many families found themselves unable to afford coverage 
through their employer or on the ACA Marketplaces, a situation 
some labeled the ``family glitch''. Accordingly, following an 
Executive Order issued by President Biden to promote access to 
affordable health coverage consistent with statutory 
directives, the Treasury Department and the Internal Revenue 
Service proposed a new regulation in April 2022 that would base 
the test of an ``affordable'' offer for family members on 
coverage that includes the employee's family members, not self-
only coverage.\3\
---------------------------------------------------------------------------
    \2\Patient Protection and Affordable Care Act; Health Insurance 
Market rules; Rate Review; Final Rule, 78 Fed. Reg. 13406 (February 27, 
2013) (to be codified at 45 C.F.R. Sec.  Sec. 144, 147, 150, 154, and 
156).
    \3\Strengthening Medicaid and the Affordable Care Act, Exec. Order 
14009, 86 Fed. Reg. 7793 (February 2, 2021); and Affordability of 
Employer Coverage for Family Members of Employees, 87 Fed. Reg. 20354 
(April 7, 2022) (to be codified at 26 C.F.R. Sec. 1).
---------------------------------------------------------------------------
    The proposed changes would benefit everyday Americans 
immensely. Should the proposed change be made, the White House 
estimates that nearly 200,000 uninsured people would gain 
coverage, and approximately one million Americans would see 
their coverage become more affordable.\4\ Another independent 
analysis estimates that fixing the family glitch would reduce 
health care costs by $4,152 for a typical family of four with 
an income of $53,000 (i.e., 200 percent of the federal poverty 
level).\5\ A single parent with two children who earns $43,920 
(i.e., 200 percent of the federal poverty level) would save 
about as much--an estimated $4,113 per year.\6\
---------------------------------------------------------------------------
    \4\FACT SHEET: Biden Harris Administration Proposes Rule to Fix 
``Family Glitch'' and Lower Health Care Costs, White House (Apr. 5, 
2022), https://www.whitehouse.gov/briefing-room/statements-releases/
2022/04/05/fact-sheet-biden-harris-administration-proposes-rule-to-fix-
family-glitch-and-lower-health-care-costs/.
    \5\David Kendall et al., Capping Families' Health Care Costs: 
Savings by State, Third Way (Apr. 13, 2022), https://www.thirdway.org/
report/capping-families-health-care-costs-savings-by-state.
    \6\Id.
---------------------------------------------------------------------------
    As was made clear during its consideration, this resolution 
amounts to little more than a partisan political exercise 
carried out by those who have sought to thwart the success of 
the ACA at every turn. From trying to weaken pre-existing 
condition protections, promoting junk insurance plans that 
mislead consumers, to supporting litigation that would have 
overturned the entire ACA, supporters of this resolution have 
shown their true motives. Rather than work to strengthen the 
ACA and help reduce health care costs for lower- and middle-
income Americans in their districts, this resolution is yet 
another partisan attempt to distract from their lack of a plan 
to expand access to affordable coverage.

                         C. Legislative History


Background

    H. Res. 1262 was introduced on July 26, 2022, by 
Representative Vern Buchanan and was referred to the Committee 
on Ways and Means.

Committee hearings

    The committee held no hearings on H. Res. 1262.

Committee action

    The Committee on Ways and Means marked up H. Res. 1262 on 
September 20, 2022 and ordered the resolution reported 
adversely (with a quorum being present).

                      II. EXPLANATION OF THE BILL

    H. Res. 1262 directs the Secretary of Health and Human 
Services to provide to the House of Representatives certain 
documents in the Secretary's possession regarding the 
reinterpretation of sections 36B(c)(2)(C)(i)(II) and 
5000A(e)(1)(B) of the Internal Revenue Code of 1986, commonly 
known as the ``fix to the family glitch.''

                      III. VOTES OF THE COMMITTEE

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the following statement is made 
concerning the vote of the Committee on Ways and Means in its 
consideration of H. Res. 1262, ``Of inquiry directing the 
Secretary of Health and Human Services to provide to the House 
of Representatives certain documents in the Secretary's 
possession regarding the reinterpretation of sections 
36B(c)(2)(C)(i)(II) and 5000A(e)(1)(B) of the Internal Revenue 
Code of 1986,'' on September 20, 2022. The resolution was 
ordered reported adversely to the House by a roll call vote of 
25 yeas and 16 nays. The vote was as follows:

----------------------------------------------------------------------------------------------------------------
         Representative             Yea       Nay     Present     Representative      Yea       Nay     Present
----------------------------------------------------------------------------------------------------------------
Mr. Doggett....................        X   ........  .........  Mr. Brady........  ........        X   .........
Mr. Thompson...................        X   ........  .........  Mr. Buchanan.....  ........        X   .........
Mr. Larson.....................        X   ........  .........  Mr. Smith (NE)...  ........        X   .........
Mr. Blumenauer.................        X   ........  .........  Mr. Kelly........  ........        X   .........
Mr. Kind.......................        X   ........  .........  Mr. Smith (MO)...  ........  ........  .........
Mr. Pascrell...................        X   ........  .........  Mr. Rice.........  ........        X   .........
Mr. Davis......................        X   ........  .........  Mr. Schweikert...  ........        X   .........
Ms. Sanchez....................        X   ........  .........  Mr. LaHood.......  ........        X   .........
Mr. Higgins....................        X   ........  .........  Dr. Wenstrup.....  ........        X   .........
Ms. Sewell.....................        X   ........  .........  Mr. Arrington....  ........        X   .........
Ms. DelBene....................        X   ........  .........  Dr. Ferguson.....  ........        X   .........
Ms. Chu........................        X   ........  .........  Mr. Estes........  ........        X   .........
Ms. Moore......................        X   ........  .........  Mr. Smucker......  ........        X   .........
Mr. Kildee.....................        X   ........  .........  Mr. Hern.........  ........        X   .........
Mr. Boyle......................        X   ........  .........  Mrs. Miller......  ........        X   .........
Mr. Beyer......................        X   ........  .........  Dr. Murphy.......  ........        X   .........
Mr. Evans......................        X   ........  .........  Mr. Kustoff......  ........        X   .........
Mr. Schneider..................        X   ........  .........  .................  ........  ........  .........
Mr. Suozzi.....................        X   ........  .........  .................  ........  ........  .........
Mr. Panetta....................        X   ........  .........  .................  ........  ........  .........
Mrs. Murphy....................        X   ........  .........  .................  ........  ........  .........
Mr. Gomez......................        X   ........  .........  .................  ........  ........  .........
Mr. Horsford...................        X   ........  .........  .................  ........  ........  .........
Ms. Plaskett...................        X   ........  .........  .................  ........  ........  .........
Chairman Neal..................        X   ........  .........  .................  ........  ........  .........
    Totals.....................       25   ........  .........      Totals.......  ........       16   .........
----------------------------------------------------------------------------------------------------------------

                     IV. BUDGET EFFECTS OF THE BILL


               A. Committee Estimate of Budgetary Effects

    Clause 3(d) of rule XIII of the Rules of the House of 
Representatives is inapplicable.

B. Statement Regarding New Budget Authority and Tax Expenditures Budget 
                               Authority

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable.

      C. Cost Estimate Prepared by the Congressional Budget Office

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
Congressional Budget Office did not provide a cost estimate of 
the resolution.

     V. OTHER MATTERS TO BE DISCUSSED UNDER THE RULES OF THE HOUSE


          A. Committee Oversight Findings and Recommendations

    With respect to clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee made findings and recommendations that are 
reflected in this report.

        B. Statement of General Performance Goals and Objectives

    With respect to clause 3(c)(4) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
bill does not authorize funding, so no statement of general 
performance goals and objectives is required.

              C. Information Relating to Unfunded Mandates

    This information is provided in accordance with section 423 
of the Unfunded Mandates Reform Act of 1995 (Pub. L. No. 104-
4).
    The Committee has determined that the bill does not contain 
Federal mandates on the private sector. The Committee has 
determined that the bill does not impose a Federal 
intergovernmental mandate on State, local, or tribal 
governments.

                    D. Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by the bill.

                 E. Applicability to Legislative Branch

    The Committee finds that the bill does not relate to the 
terms and conditions of employment or access to public services 
or accommodations within the meaning of section 102(b)(2) of 
the Congressional Accountability Act.

  F. Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
                                Benefits

    With respect to clause 9 of rule XXI of the Rules of the 
House of Representatives, the Committee has carefully reviewed 
the provisions of the bill, and states that the provisions of 
the bill do not contain any congressional earmarks, limited tax 
benefits, or limited tariff benefits within the meaning of the 
rule.

                              G. Hearings

    In compliance with clause 3(c)(6) of rule XIII of the Rules 
of the House of Representatives, the Committee states that no 
hearings were held on this resolution.

       VI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    In compliance with clause 3(e)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that H. 
Res. 1262 does not make any changes to existing law.

                         VII. DISSENTING VIEWS

    Committee Republicans strongly oppose the Committee's 
action of unfavorably reporting H. Res. 1262, Resolution of 
inquiry directing the Secretary of Health and Human Services to 
provide to the House of Representatives certain documents in 
the Secretary's possession regarding the reinterpretation of 
sections 36B(c)(2)(C)(i)(II) and 5000A(e)(1)(B) of the Internal 
Revenue Code of 1986, commonly known as the ``fix to the family 
glitch.''
    Congressional oversight is one of the most important 
responsibilities of the U.S. Congress, and Resolutions of 
Inquiry (ROIs) are one of the methods used by the U.S. House of 
Representatives to obtain information from the executive 
branch. ROIs simply demand that the administration turn over 
basic information to Congress. This information is critical 
because it allows the Congress the ensure the executive 
branch's compliance with congressional intent; evaluate program 
performance; prevent the executive branch's encroachment on the 
legislative branch's powers; assess an agency's ability to 
manage and carry out program objectives; and acquire 
information from the executive branch that can inform 
policymaking.
    Moreover, Congressional Republicans have repeatedly sought 
information from the Administration about the expected and 
actual impact of these policies. Transparency is essential 
because it promotes accountability and provides information for 
the Congress and Americans about what the federal government is 
doing. Despite the Biden Administration stating that President 
Biden would ``bring transparency and truth back to the 
government to share the truth, even when it's hard to hear,'' 
the Administration has ignored the need for congressional 
oversight and completely failed on its promise. The American 
people deserve to know how their government works and we will 
hold the Biden Administration accountable for its disastrous 
policies.
    This resolution seeks White House Communications with the 
U.S. Department of Health and Human Services (HHS) regarding 
the decision to reinterpret the meaning of the aforementioned 
sections of the Internal Revenue Code of 1986. We expect that 
this decision was pushed by the White House and coordinated 
between the White House, HHS, and the U.S. Department of 
Treasury, over potential objections expressed by programmatic 
staff at their respective agencies dating back to the Obama 
Administration. This resolution seeks to understand whether and 
how the White House put politics over the law in pressuring 
agencies to take an unlawful action.
    The ACA established the premium tax credits (PTCs) to 
subsidize private health insurance purchased on the individual 
market. Those ACA subsidies are both generous and costly, so 
the law was designed with a limit that ensures employees--and 
their family members--that receive an offer of affordable 
coverage from their employer would not qualify for PTCs. This 
determination of affordability, in the statute, was tied to 
whether the coverage was considered affordable for the 
employee. The question then became whether the employee's 
family members would qualify for ACA subsidies. Despite 
significant political pressure at the time to extend PTCs to 
the employee's family members, the letter of the law was 
clear--those family members were ineligible for ACA subsidies 
because of the employee's offer of affordable coverage. Some 
have called this a ``family glitch'' since dependents may not 
have access to PTCs or robust coverage through their parent's 
plan, but it seems the provision was intentional, and the 
statute Democrats passed in 2010 is crystal clear.
    On April 5, 2022, President Biden announced a ``fix'' to 
the so-called Affordable Care Act's (ACA) ``family glitch'' via 
executive action even though the Obama Administration 
previously determined that it could not fix the ``family 
glitch'' without congressional action. The statutory text is 
clear, and the Biden Administration's actions overturns a 
decade of statutory and legal interpretation.
    On April 7, 2022, the Biden Administration proposed a rule 
to reverse this long-held interpretation. This decision is 
damaging to the administration's credibility and the trust 
American people have in the executive branch, and the decision 
also represents bad policy. It has been estimated that about 90 
percent of the roughly five million people affected by this 
illegal expansion of a federal program already have health 
insurance coverage. Even worse, the rule displaces private 
sector health care spending with $45 billion in government 
spending. Congress could change this policy but has been 
unwilling to justify such a massive spending program with 
relatively little return on investment. By allowing the 
Administration to make this policy decision Democrats are 
seemingly content to let the Biden Administration violate the 
Separation of Powers and carry out actions that are inherently 
legislative in nature--actions that should be reserved to, and 
carried out by, the Congress. It is disappointing that 
Committee Democrats have blocked the request for this 
information instead of protecting the powers granted 
exclusively to Congress in Article I of the Constitution.

                                   Kevin Brady,
                                           Ranking Member.
                                   Vern Buchanan.

                                  [all]