[House Report 117-530]
[From the U.S. Government Publishing Office]


117th Congress   }                                    {     Report
                        HOUSE OF REPRESENTATIVES
 2d Session      }                                    {     117-530

======================================================================

 
   RESOLUTION OF INQUIRY DIRECTING THE SECRETARY OF HEALTH AND HUMAN 
       SERVICES TO PROVIDE CERTAIN DOCUMENTATION TO THE HOUSE OF 
  REPRESENTATIVES RELATING TO THE CALCULATION OF CERTAIN EXPENDITURE 
 LIMITATIONS APPLICABLE TO FEDERAL FUNDING OF THE MEDICAID PROGRAM IN 
                              PUERTO RICO

                                _______
                                

 September 29, 2022.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

 Mr. Pallone, from the Committee on Energy and Commerce, submitted the 
                               following

                             ADVERSE REPORT

                             together with

                             MINORITY VIEWS

                      [To accompany H. Res. 1258]

    The Committee on Energy and Commerce, to whom was referred 
the resolution (H. Res. 1258) of inquiry directing the 
Secretary of Health and Human Services to provide certain 
documentation to the House of Representatives relating to the 
calculation of certain expenditure limitations applicable to 
Federal funding of the Medicaid program in Puerto Rico, having 
considered the same, report unfavorably thereon without 
amendment and recommend that the resolution not be agreed to.

                                CONTENTS

                                                                   Page
   I. Purpose and Summary.............................................2
  II. Background and Need for the Legislation.........................2
 III. Committee Hearings..............................................2
  IV. Committee Consideration.........................................2
   V. Committee Votes.................................................2
  VI. Oversight Findings..............................................5
 VII. New Budget Authority, Entitlement Authority, and Tax Expenditure5
VIII. Federal Mandates Statement......................................5
  IX. Statement of General Performance Goals and Objectives...........5
   X. Duplication of Federal Programs.................................5
  XI. Committee Cost Estimate.........................................5
 XII. Earmarks, Limited Tax Benefits, and Limited Tariff Benefits.....5
XIII. Advisory Committee Statement....................................6
 XIV. Applicability to Legislative Branch.............................6
  XV. Section-by-Section Analysis of the Legislation..................6
 XVI. Changes in Existing Law Made by the Bill, as Reported...........6
XVII. Minority Views..................................................7

                         I. PURPOSE AND SUMMARY

    H. Res. 1258 directs the Secretary of Health and Human 
Services (HHS) to provide documents or communication from 
before September 7, 2021, that relate to the interpretation of 
section 1108 of the Social Security Act (SSA) relating to the 
calculation of the federal Medicaid allotment for Puerto Rico 
for FY 2022 and beyond. It also directs the Secretary of HHS to 
provide communications between HHS and the Government 
Accountability Office (GAO) that relate to the Comptroller 
General's legal analysis of the Puerto Rico federal Medicaid 
allotment as required by P.L. 117-43.

                II. BACKGROUND AND NEED FOR LEGISLATION

    Annual federal funding for Medicaid in Puerto Rico is 
subject to a statutory cap and fixed matching rate. The Further 
Consolidated Appropriations Act of 2020 and the Families First 
Coronavirus Response Act (FFCRA) amended the statute to 
increase the allotment for all of the territories. In September 
2021, the Centers for Medicare and Medicaid Services (CMS) 
calculated the FY 2022 allotment for Puerto Rico based on the 
amended statute.
    H. Res. 1258 seeks to obtain documents, records, audio 
recordings, memoranda, call logs, correspondence, or other 
communication by the Department of HHS pertaining to the 
calculation of the Medicaid allotment for Puerto Rico 
calculated under section 1108 of the SSA. The Administration 
has made the relevant agency personnel available to 
congressional staff, including minority staff, on multiple 
occasions. The minority has not previously requested these 
documents through written requests to the agency. Therefore, H. 
Res 1258 falls short of the standard for resolutions of inquiry 
set by the Committee in prior Congresses. For these reasons, 
the Committee ordered H. Res. 1258 to the House adversely.

                        III. COMMITTEE HEARINGS

    The Committee on Energy and Commerce has not held hearings 
on the legislation.

                      IV. COMMITTEE CONSIDERATION

    H. Res. 1258 was introduced on July 26, 2022, by 
Representative Dunn (R-FL) and was referred to the Committee on 
Energy and Commerce. Subsequently, on July 27, 2022, the 
resolution was referred to the Subcommittee on Health. The 
resolution was discharged from the Subcommittee on Health on 
September 21, 2022.
    On September 21, 2022, the Committee met in open markup 
session and ordered H. Res. 1258, without amendment, adversely 
reported to the House by a recorded vote of 32 yeas and 22 
nays.

                           V. COMMITTEE VOTES

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list each record vote 
on the motion to report legislation and amendments thereto. The 
Committee advises that there was one record vote taken on H. 
Res. 1258, including a motion by Mr. Pallone ordering H. Res. 
1258 adversely reported to the House, without amendment. The 
motion on unfavorably reporting the resolution was approved by 
a record vote of 32 yeas to 22 nays. The following are the 
record votes taken during Committee consideration, including 
the names of those members voting for and against:


	[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                         VI. OVERSIGHT FINDINGS

    Pursuant 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 
oversight findings and recommendations of the Committee are 
reflected in the descriptive portion of the report.

 VII. NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES

    Pursuant to 3(c)(2) of rule XIII of the Rules of the House 
of Representatives, the Committee adopts as its own the 
estimate of new budget authority, entitlement authority, or tax 
expenditures or revenues contained in the cost estimate 
prepared by the Director of the Congressional Budget Office 
pursuant to section 402 of the Congressional Budget Act of 
1974.
    The Committee has requested but not received from the 
Director of the Congressional Budget Office a statement as to 
whether this bill contains any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.

                    VIII. FEDERAL MANDATES STATEMENT

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

       IX. STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    Pursuant to clause 3(c)(4) of rule XIII, the general 
performance goal or objective of this legislation is to direct 
the Secretary of Health and Human Services to provide certain 
documentation to the House of Representatives relating to the 
calculation of to the Federal Medicaid allotment for Puerto 
Rico for fiscal year 2022, and subsequent years.

                   X. DUPLICATION OF FEDERAL PROGRAMS

    Pursuant to clause 3(c)(5) of rule XIII, no provision of H. 
Res. 1258 is known to be duplicative of another Federal 
program, including any program that was included in a report to 
Congress pursuant to section 21 of Public Law 111-139 or the 
most recent Catalog of Federal Domestic Assistance.

                      XI. COMMITTEE COST ESTIMATE

    Pursuant to clause 3(d)(1) of rule XIII, the Committee 
adopts as its own the cost estimate prepared by the Director of 
the Congressional Budget Office pursuant to section 402 of the 
Congressional Budget Act of 1974.

    XII. EARMARKS, LIMITED TAX BENEFITS, AND LIMITED TARIFF BENEFITS

    Pursuant to clause 9(e), 9(f), and 9(g) of rule XXI, the 
Committee finds that H. Res. 1258 contains no earmarks, limited 
tax benefits, or limited tariff benefits.

                   XIII. ADVISORY COMMITTEE STATEMENT

    No advisory committee within the meaning of section 5(b) of 
the Federal Advisory Committee Act was created by this 
legislation.

                XIV. APPLICABILITY TO LEGISLATIVE BRANCH

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

           XV. SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

    H. Res. 1258 directs the Secretary of the HHS to furnish to 
the House of Representatives any external or internal 
communications that occurred before September 7, 2021, 
regarding the calculation of Puerto Rico's federal Medicaid 
allotment for FY2022 and subsequent years, as well as 
communications with the Government Accountability Office (GAO) 
regarding its review of FY2022 calculations. This includes 
documentation related to internal and external communications 
by HHS employees relating to interpretations of section 1108 of 
the SSA, and communication by HHS with the GAO regarding such 
interpretations.

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

    There are no changes to existing law made by the bill H. 
Res. 1258.

                          XVII. MINORITY VIEWS

    For the past decade, the Energy and Commerce Committee has 
shared a bipartisan interest in in ensuring that Medicaid 
funding for U.S. territories (i.e., Puerto Rico, U.S. Virgin 
Islands, Guam, American Samoa, and the Commonwealth of the 
Northern Mariana Islands) could be sufficient to meet the 
health care needs of each respective territory. Recent Energy 
and Commerce-led efforts to extend funding for the territories 
include the Bipartisan Budget Act of 2018 (BBA18), the 
Consolidated Appropriations Act of 2020 (CAA20), and the 
Consolidated Appropriations Act of 2022 (CAA22).
    Prior to Fiscal Year 2022, a plain reading of Section 
1108(g) of the Social Security Act held found that each 
territory was appropriated an annual, base allotment and 
received a statutorily-set Federal Medical Assistance 
Percentage (FMAP) of 55%. On a number of occasions, including 
the aforementioned efforts in BBA18 and CAA20, Congress 
appropriated additional funds to each of the territories on top 
of their base allotments and raised the territory FMAPs to 
higher levels. In fact, the Committee began bipartisan work in 
2021 to extend the enhanced cap and FMAP amounts, under the 
assumption that the temporary extensions for both policies that 
was made in the CA20 would expire at the end of Fiscal Year 
2021, and reached a bipartisan compromise that would have 
extended enhanced funding for the territories for the longest 
extension ever (with five years of funding for Puerto Rico and 
eight years of funding for the other four territories).
    However, the interpretation of Section 1108(g) was thrown 
into question by the Centers for Medicare and Medicaid Services 
(CMS) as they agency began to calculate the base allotment 
amounts for the territories for Fiscal Year 2022. On September 
15, 2021, CMS conveyed that changes made by the Families First 
Coronavirus Response Act (FFCRA), which further raised the 
enhanced allotments for each of the territories in response to 
the emerging COVID-19 pandemic, contained drafting errors that 
CMS interpreted as making permanent the enhanced allotments for 
each of the five territories.
    Upon review by minority staff, the Congressional Research 
Service (CRS), and the Government Accountability Office (GAO), 
it became clear that the FFCRA had unintentionally made 
permanent the enhanced allotment levels for the U.S. Virgin 
Islands, Guam, American Samoa, and the Commonwealth of the 
Northern Mariana Islands. However, all parties agreed that CMS 
had overstepped its authority in permanently extending funding 
for Puerto Rico by misinterpreting the amendments made by the 
FFCRA. Since publications by the CRS and the GAO, CMS has only 
continued to double down on its assertion that it has properly 
interpreted the statute and that the agency must continue to 
permanently appropriate funding for Puerto Rico at an enhanced 
allotment level rather than the required, lower, statutory 
amount.
    It is unclear how CMS could possibly have arrived at such a 
conclusion for Puerto Rico to receive permanent funding, and H. 
Res. 1258 seeks information from the agency to better 
understand how the agency came to its decision and where it may 
have erred in its decision making.
                                    Cathy McMorris Rodgers,
               Republican Leader, Committee on Energy and Commerce.

                                  [all]