The following LPG Weekly Health Care Watch provides a summary of legislative and regulatory health care activities from September 14 - September 19. Where available, hyperlinks are included to the relevant documents. Please let us know if you have any questions or would like additional information on the items below.
NON-CORONAVIRUS LEGISLATIVE UPDATE
On September 15, Senate Appropriations Chair Richard Shelby (R-AL) suggested a continuing resolution could extend government funding until December 18. House Democrats are pushing for a December 11 end date and plan to vote on such a bill the week of September 21.
On September 17, 28 bipartisan Senators voiced their concerns to Health and Human Services (HHS) Secretary Alex Azar regarding certain pharmaceutical manufacturers undermining the role of contract pharmacies in the 340B drug discount program. AstraZeneca and Lilly have indicated that they will stop providing 340B discounts for most drugs (excluding insulin for Lilly) purchased through contract pharmacies if 340B providers have in-house pharmacies. Novartis and Sanofi have indicated they will only provide 340B discounts obtained through contract pharmacies if those pharmacies share their claims data.
NON-CORONAVIRUS REGULATORY UPDATE
On September 14, the Health Resources and Services Administration (HRSA) awarded $25 million to 80 recipients, as part of the Rural Communities Opioid Response Program, to target high-risk rural communities to reduce morbidity and mortality from substance use disorder and opioid use disorder.
On September 14, Centers for Medicare & Medicaid Services (CMS) Administrator Seema Verma published a report in Health Affairs that the Medicare Shared Savings Program generated $1.2 billion in net savings in 2019, while continuing to deliver high quality care. The report found that Accountable Care Organizations (ACOs) under the Pathways to Success saved $169 per beneficiary compared to $106 per beneficiary for legacy track ACO.
On September 14, CMS released Part I of its 2022 Medicare Advantage and Part D Advance Notice. The release focused on the CMS-HHS Risk Adjustment Model, which CMS proposes to fully phase-in in 2022, in accordance with the statute. CMS notes that payment changes unrelated to risk adjustment, which only require a 30-day comment period (rather than 60 days), will be released at a later date. The final 2022 Rate Announcement must be released no later than April 5, 2021. However, CMS noted it could be released in January to help provide plans with certainty during the public health emergency. Bids for the 2022 plan year are due by June 7, 2021.
On September 14, CMS withdrew a proposed rule entitled Medicaid Fiscal Accountability Regulation due to concerns over potential unintended consequences of the policy. The agency originally issued the proposed with the goal of increasing transparency and accountability and ensure long-term fiscal integrity in the Medicaid program but opponents of the rule voiced their concern regarding limiting state flexibility and cutting Medicaid funding.
On September 15, CMS Skilled Nursing Facility (SNF) Quality Reporting Program (QRP) announced a request for public comment for the measure development process entitled Draft Measure Specifications: SNF Healthcare-Associated Infections Requiring Hospitalizations for the SNF QRP. This measure will be under consideration later this year.
On September 15, CMS released guidance to state Medicaid directors to encourage value-based care strategies and align provider incentives. The guidance stresses the importance of multi-payer alignment in value-based care in Medicaid and supports state efforts to align new payment models in Medicaid with Medicare and other private payers. A fact sheet for this guidance is available here. A summary of the guidance is available here.
On September 15, the U.S. Census Bureau released a report finding that 29.6 million people were not covered by health insurance in 2019, an increase from 28.6 million in 2018. This report found a slight increase in Medicare and private insurance coverage from 2019 to 2019. Notably, the Census found a decrease in Medicaid enrollment, from 67 million people to 64.1 million, with states that expanded Medicaid having lower uninsured rates.
On September 15, Food and Drug Administration’s (FDA) Principal Associate Commissioner for Policy Lowell Schiller left the agency. Schiller was brought into the agency in May 2017 and worked on CBD, insulin, drug importation policies, and COVID-19 guidance. Lauren Roth will serve as acting head of FDA’s policy office.
On September 16, CMS published the Inpatient Rehabilitation Facility Patient Assessment Instrument and the Long-Term Care Hospital Continuity Assessment Record and Evaluation Data Set quarterly Q&As.
On September 16, CMS released updated Medicaid and Children’s Health Insurance Program data, including service utilization and spending data. A fact sheet for the data is available here.
On September 18, CMS released a final rule entitled the Medicare Specialty Care Models to Improve Quality of Care and Reduce Expenditures that finalizes two alternative payment models. The rule finalizes the End-Stage Renal Disease (ESRD) Treatment Choices (ETC) Model, that aims to test shifting Medicare payments from traditional fee-for-service payments to a value-based payment model where providers are incentivized for encouraging receipt of home dialysis and kidney transplants. The ETC Model will begin on January 1, 2021 and is estimated to save $23 million over five and a half years. The rule also finalizes the Radiation Oncology (RO) Model,that provides bundled payments for 90-day episodes of radiotherapy covering 16 different types of cancer. The RO Model will also begin on January 1, 2021 and is estimated to save Medicare $230 million over five years.
On September 18, the Centers for Disease Control and Prevention (CDC) announced changes to testing guidelines, including reinforcing the need to test asymptomatic people and that people who have been exposed to someone with COVID-19 should self-quarantine at home for 14 days, even if they test negative. This reverses previous guidance that did not require asymptomatic people who were exposed to a COVID-19 positive person to be tested.
On September 18, CMS announced that 20 Medicare-certified hospice providers will participate in the alpha testing phase of development of the Hospice Outcomes & Patient Evaluation assessment. This assessment will assist in developing hospice quality measures, including outcome measures that reflect the needs of patients, their families, and caregivers throughout the hospice stay.
CORONAVIRUS UPDATE
Legislative
On September 15, Speaker Nancy Pelosi (D-CA) said the House would remain in session until a relief package is passed. Majority Leader Steny H. Hoyer (D-MD) clarified that lawmakers would need to remain on call during the recess starting on October 2, not stay in Washington.
On September 15, the Problems Solvers Caucus released a $1.9 trillion pandemic relief compromise. The bipartisan caucus’s package includes $100 billion for testing and health care, $500.3 billion in state and local aid, funding for broadband, liability protections, and other aid.
On September 14, seven House Select Subcommittee on the Coronavirus Crisis Democrat members launched an investigation of communications and documents from the CDC and HHS regarding potential political interference in scientific and public health reports. Senate Health, Education, Labor, and Pensions Ranking Member Patty Murray (D-WA) and House Appropriations Subcommittee Chair Rosa DeLauro (D-CT) also called for investigation into political influence and potential misused taxpayer funding associated in CDC and HHS.
On September 14, 15 senators, including Sen. Elizabeth Warren (D-MA), urged FDA Commissioner Stephen Hahn to commit to full transparency and accountability of the COVID-19 review process and voiced concern regarding political pressure influencing the FDA. The letter also called for making vaccine data open to the public.
On September 16, the Senate Appropriations Labor, Health and Human Services, Education, and Related Agencies held a hearing entitled HHS’s Coronavirus Response: A Review of Efforts to Date and Next Steps”. Chairman Roy Blunt (R-MO) called for Congress to pass a bipartisan COVID-19 relief package. CDC Director Robert Redfield predicted that it will take six to nine months to vaccinate enough people to achieve herd immunity in the U.S. and could cost as much as $6 billion to distribute. Both HHS Assistant Secretary Brett Giroir and CDC Director Redfield advocated for wearing masks and social distancing, even after a vaccine is available. Witnesses included: Brett Giroir, MD, Assistant Secretary, HHS; Bob Kadlec, MD, Assistant Secretary for Preparedness and Response, HHS; and Robert Redfield, MD, Director, CDC.
Regulatory
On September 14, the Inspector General for the U.S. International Development Finance Corp. opened a review of the $765 million government pharmaceutical production loan to Eastman Kodak. This investigation is in response to a previous Congressional request to investigate concerns about Kodak’s competency in drug manufacturing and stock trades by company insiders. The Securities and Exchange Commission is also investigating this Kodak contract for potential insider trading. On September 15, a law firm hired by Kodak claimed that Kodak executives did not participate in insider trading or violate securities regulations.
On September 15, the FDA released data from the COVID-19 Reference Panel, comparing the performance of different diagnostic tests.
On September 16, the CDC released a plan for states to distribute and administer free COVID-19 vaccines entitled COVID-19 Vaccination Program Interim Playbook for Jurisdiction Operations. The plan requires states to submit vaccine distribution plans by October 16 and details a three-part priority based phased approach to vaccination, including shipping a vaccine within 24 hours of authorization.
On September 16, HHS and the Department of Defense released a report to Congress entitled From the Factory to the Frontlines: The Operation Warp Speed Strategy for Distributing a COVID-19 Vaccine. The report details Operation Warp Speed’s process to effectively and efficiently distribute and administer COVID-19 vaccines to the public at no cost beginning in January 2021. Doses may be available as early as November to essential workers and high-risk individuals. On September 17, Ranking Member Murray said the report was “missing far too many pieces.”
On September 16, MITRE Corporation, as commissioned by CMS, released a report reviewing the coronavirus response in nursing homes. The commission outlined 10 recommendations, including calling for nursing homes to have stocks of personal protective equipment and developing a national strategy for testing. The commission endorsed the report but some members said the report did not focus closely enough on the industry’s own failures and CMS’ responsibility to ensure facility accountability. CMS immediately released a response to the report, detailing the administration’s actions to address the recommendations.
The FDA will hold its first coronavirus vaccine advisory meeting on October 22.
White House
On September 16, President Trump tweeted support for a larger pandemic relief package. Senate Majority Whip John Thune (R-SD) responded that a larger package would be more difficult to pass the Senate. Speaker Pelosi signaled her enthusiasm to restart negotiations with a larger package in mind.
Other
On September 14, Lilly announced positive results from a clinical trial, finding that the combination of baricitinib and remdesivir reduced the recovery time for patients with mild-to-moderate COVID-19 symptoms by one day on average, compared to remdesivir alone. Lilly plans to discuss the potential for emergency use authorization (EUA) with the FDA. On September 16, the company also announced results from a Phase II COVID-19 treatment clinical trial for monoclonal antibody drug treatment, LY-CoV555, showing a reduced rate of hospitalization for patients with mild-to-moderate COVID-19 symptoms. The data has not been peer-reviewed or published in a journal. On September 17, Lilly announced a partnership with Amgen to increase manufacturing and supply capacity for Lilly’s COVID-19 therapies.
On September 15, Becton Dickinson & Co. announced that the company is investigating reports from nursing homes that submitted complaints of false-positive results in the federally provided BD-rapid COVID-19 testing equipment.
On September 15, Thermo Fisher expanded its lab plastics production by $140 million to support COVID-19 testing, therapies, and vaccines.
On September 16, Gauss and Cellex announced the first at-home rapid COVID-19 diagnostic test. The companies are seeking an EUA from the FDA.
On September 16, AstraZeneca announced that the adverse event that paused the company’s Phase III COVID-19 vaccine clinical trial last week was deemed “unlikely to be associated with the vaccine or there was insufficient evidence to say for certain that the illnesses were or were not related to the vaccine.” The clinical trial is still paused in the U.S.
On September 16, 11 state treasurers urged Gilead to lower the price of remdesivir, as it is being broadly used as a treatment for COVID-19, and warned the company of pursuing “unreasonable profits.” The treasurers also threatened to support legislation and legal actions over remdesivir pricing.
On September 17, Moderna and Pfizer released details of the companies’ plans to evaluate their respective COVID-19 vaccine trial data. The documents suggest that it will take Moderna until at least December and Pfizer until January to determine whether their vaccines work.
On September 17, the Center for American Progress published a plan for the next president to lower drug prices and ensure access to COVID-19 treatments and future vaccines. The plan calls for the next president to utilize administrative actions to address the drug industry’s monopoly power, lower the prices Medicare pays for drugs, and other HHS actions to encourage innovation and lower drug spending.
On September 18, Roche announced that the company’s Phase III clinical trial for the treatment of COVID-19 with Actemra/RoActemra, tocilizumab, resulted in reduced need for ventilation and reduced mortality.
On September 18, the Urban Institute released a report finding that 3.3 million people lost their employer-sponsored health insurance due to COVID-19 and 1.9 million became newly uninsured.
As of September 19, the U.S. had 6,764,401 confirmed COVID-19 cases resulting in 199,255 deaths, according to the Johns Hopkins University & Medicine Coronavirus Resource Center.
RULES AT THE WHITE HOUSE OMB
Pending Review
HHS-CMS
Conditions for Coverage for End-Stage Renal Disease Facilities-Third Party Payments (CMS-3337-P); Received 6/6/19
International Pricing Index Model for Medicare Part B Drugs (CMS-5528-P); Proposed Rule; Received 6/20/19
Medicaid & CHIP Managed Care (CMS-2408-F); Final Rule; Received 9/26/2019
Strengthening Oversight of Accrediting Organizations (AO) and Preventing AO Conflict of Interest, and Related Provisions (CMS-3367); Proposed Rule; Received 2/18/20
Specialty Care Models to Improve Quality of Care and Reduce Expenditures (CMS-5527); Proposed Rule; Received 3/10/20
Payment Policies for Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) (CMS-1738); Proposed Rule; Received 4/28/20
Modernizing and Clarifying the Physician Self-Referral Regulations (CMS-1720); Final Rule; Received 7/21/20
Revisions to Medicare Part A Enrollments (CMS-4194)l Proposed Rule; Received 9/9/20
HHS-FDA
Annual Summary Reporting Requirements Under the Right to Try Act; Proposed Rule; Received 3/31/20
Opioid Use Disorder: Endpoints for Demonstrating Effectiveness of Drugs for Medication-Assisted Treatment; Guidance for Industry; Notice; Received 5/28/2020
Importation of Prescription Drugs; Final Rule; Received 9/10/20
Importation of Certain Food and Drug Administration-Approved Human Prescription Drugs, Including Biological Products, and Combination Products; Final Guidance (OC, 2020-449); Notice; 9/10/2020
HHS-HRSA
Implementation of Executive Order 13937, "Executive Order on Access to Affordable Life-saving Medications"; Interim Final Rule; Received 9/1/20
HHS-OCR
HIPAA Privacy: Changes To Support, and Remove Barriers to, Coordinated Care and Individual Engagement; Proposed Rule; Received 7/31/20
HHS-OIG
Revisions to the Safe Harbors Under the Anti-Kickback Statute and Beneficiary Inducements Civil Monetary Penalties Rules Regarding Beneficiary Inducement; Final Rule; Received 7/21/20
REPORTS
HHS Office of Inspector General (OIG)
On September 14, OIG released a report entitled The National Institutes of Health (NIH) Should Improve Its Stewardship and Accountability Over Hardware and Software Assets. The report found that NIH had controls to effectively and efficiently track and monitor IT resources but did not perform internal control activities in accordance with Federal directives and maintain a continual agency wide software license inventory. OIG found that there was inadequate oversight to hold the Institutes and Centers of the NIH accountable for the performance of internal control activities, increasing the risk that NIH would be unable to report reliable asset balances, to discover cost-saving opportunities, and to effectively safeguard assets from theft and other losses. OIG recommends that the NIH enhance stewardship activities, establish an oversight body to ensure proper property accountability management, and centralize and automate the capture of software inventory and entitlement data. A summary of the report is available here.
On September 15, OIG released a report entitled Group Health Incorporated Overstated Its EmblemHealth Services Company, LLC, Employees' Retirement Plan Medicare Segment Pension Assets and Understated Medicare's Share of the Medicare Segment Pension Assets as of December 31, 2015. This report found that Group Health Incorporated (GHI) did not agree with or implement previous OIG recommendations, including updating and increasing the EmblemHealth Services Company Retirement Plan Medicare segment pension assets. OIG recommends that GHI implement the previous recommendations and recognize Medicare's share of the pension assets as a result of the benefit curtailment. GHI did not agree or address the recommendations. A summary of the report is available here.
On September 15, OIG released a report entitled Group Health Incorporated Overstated Its Local 153 Pension Plan Medicare Segment Assets and Understated Medicare's Share of the Medicare Segment Pension Assets as of August 31, 2016. The report found that GHI did not agree with or implement previous OIG recommendations, including decreasing the Local 153 Medicare segment pension assets and recognizing $31.8 million as the Local 153 Medicare pension asset values as of January 1, 2015. OIG recommends that GHI implement the previous recommendations and recognize Medicare's share of the pension assets as a result of the benefit curtailment. GHI did not agree or address the recommendations. A summary of the report is available here.
On September 15, OIG released a report entitled Group Health Incorporated Did Not Claim Some Allowable Medicare Pension Costs for CY 2009 Through 2016. OIG found that the allowable Cost Accounting Standards-based pension costs were greater than the pension costs GHI claimed for Medicare reimbursement. OIG recommended that GHI work with CMS to ensure that its final settlement of contract costs reflects an increase in Medicare pension costs. GHI did not directly address our recommendation but disagreed with OIG’s findings. A summary of the report is available here.
On September 15, OIG released a report entitled Some Manufacturers Reported Inaccurate Drug Product Data to CMS. The report found that manufacturers reported inaccurate drug product data for 14% of reviewed National Drug Codes (NDCs) associated with Part B-covered drugs. OIG identified that 24% of manufacturers were associated with inaccurate drug product data. OIG recommends that CMS should work with manufacturers associated with errors to correct and resubmit accurate product data. The summary of the report is available here.
On September 16, OIG released a report entitled Maine Did Not Always Invoice Rebates to Manufacturers for Physician-Administered Drugs. This report found that Maine did not always comply with Federal Medicaid requirements for invoicing manufacturers for rebates for physician-administered drugs, resulting in $4.3 million in not invoiced for and collected rebates. OIG recommends that Maine refund the Federal Government for missing claims, consider invoicing drug manufacturers for rebates, and strengthen its internal controls. A summary of the report is available here.
On September 16, OIG released a report entitled Group Health Incorporated Overstated Its Allowable Medicare Supplemental Executive Retirement Plan Costs for CY 2009 Through 2016. The report found that some Supplemental Executive Retirement Plan (SERP) costs GHI claimed for Medicare reimbursement were not always allowable and correctly claimed, resulting in $586,734 in overclaimed costs. OIG recommends that GHI return the overpayments. GHI disagreed with these findings and recommendations. A summary of the report is available here.
On September 16, OIG released a report entitled Group Health Incorporated Claimed Some Unallowable Medicare Postretirement Benefit Costs for CY 2009 Through 2016. This report found that some postretirement benefit (PRB) costs GHI claimed for Medicare reimbursement were not always allowable and correctly claimed, resulting in $1.6 million in unallowable PRB costs. OIG recommends that GHI return the overpayments. GHI disagreed with these findings and recommendations. A summary of the report is available here.
On September 17, OIG released a report entitled Southwest Key Programs Failed To Protect Federal Funds Intended for the Care and Placement of Unaccompanied Alien Children. Southwest Key claimed unallowable costs related to the Unaccompanied Alien Children (UAC) Program, including unallowable costs for capital leases and related-party leases; influx bonuses and executive compensation; and other unallowable expenses. OIG found that Southwest Key did not comply with Federal regulations and ensure that it followed its own policies and procedures. OIG recommended that Southwest Key refund the unallowable costs and executive compensation and implement oversight procedures to review leases and ensure all rental and ancillary costs claimed comply with Federal regulations. OIG recommended that the Office of Refugee Resettlement review other Southwest Key leases to ensure Federal regulatory compliance and recover any unallowable costs. Southwest Key disagreed with most of the recommendations and findings. A summary of the report is available here.
On September 17, OIG released a report entitled Indiana Did Not Ensure That Medicaid Payments Were Made Properly for Some Claims Identified as Having Third-Party Coverage. The report found that Indiana did not always ensure that Medicaid payments were made properly for claims for third-party coverage members, resulting in an estimated $54,965 in overpayments. OIG recommended that Indiana refund the over payment and other procedural recommendations. The state agency disagreed with some of the findings. A summary of the report is available here.
On September 17, OIG released a report entitled Medicare Home Health Agency Provider Compliance Audit: Mercy Health Visiting Nurse Services. The report found that Mercy did not comply with Medicare billing requirements, resulting in overpayments associated with beneficiaries who were not homebound or services provided to beneficiaries who did not require skilled services. OIG recommends refunding overpayments to Medicare. Mercy generally disagreed with the findings. A summary of the report is available here.
On September 18, OIG released a report entitled Medicare-Allowed Charges for Noninvasive Ventilators Are Substantially Higher Than Payment Rates of Select Non-Medicare Payers. The report estimated that Medicare and beneficiaries could have saved $86.6 million if Medicare-allowed charges were comparable with payment rates of select non-Medicare payers on noninvasive ventilator rental units billed under Healthcare Common Procedure Coding System (HCPCS), for CYs 2016 through 2018. OIG recommended that CMS review Medicare-allowed charges for noninvasive ventilators HCPCS code E0466 and add this to the competitive bidding program as soon as practicable. CMS confirmed that it had been evaluating noninvasive ventilators for potential inclusion in the competitive bidding program but it was delayed because of the COVID-19 pandemic. A summary of the report is available here.
On September 18, OIG released a report entitled Noridian Healthcare Solutions (NHS), LLC, Claimed Some Unallowable Medicare Nonqualified Plans Costs Through Its Incurred Cost Proposals. The report found that the NHS claimed $1.8 million nonqualified costs for Medicare reimbursement from CY 2014 through 2016. We recommend that NHS work with CMS to ensure that its final settlement of contract costs reflects a decrease in Medicare nonqualified costs. NHS agreed with the recommendations and said it would work with CMS. A summary of the report is available here.
Government Accountability Office (GAO)
On September 16, GAO released a report entitled Private Health Coverage: Results of Covert Testing for Selected Offerings. The report found that most health insurance sales representatives appropriately explained that an Affordable Care Act-exempt plan, including short-term plans, would not cover pre-existing conditions but some sales representatives engaged in potentially deceptive marketing practices that misrepresented or omitted information about the plans they were selling. GAO plans to refer the cases of potential deceptive marketing practices to the Federal Trade Commission and corresponding state insurance commissioners’ offices for follow-up. A summary of the report is available here.
Congressional Budget Office (CBO)
On September 18, CBO released a report entitled The Effects of Pandemic-Related Legislation on Output. The report estimated that COVID-19 legislation will add $2.3 trillion to the deficit in fiscal year (FY) 2020 and $0.6 trillion in FY 2021. The legislation is predicted to boost GDP by 4.7% in FY 2020 and 3.1% in FY 2021. CBO estimates that by increasing debt as a percentage of GDP, the legislation will raise borrowing costs, lower economic output, and reduce national income in the longer term.
UPCOMING HEARINGS
Senate
Health, Education, Labor and Pension Committee
September 23, 10:00 a.m., G50 Dirksen Senate Office Building
COVID-19: An Update on the Federal Response
Witnesses include: Anthony Fauci, MD, Director, National Institute of Allergy and Infectious Diseases, NIH; Robert Redfield, MD, Director, CDC; Brett Giroir, MD, Assistant Secretary for Health, HHS; and Stephen Hahn, MD, FDA Commissioner, FDA.
House
None of note.
OTHER HEALTH POLICY NEWS
On September 14, the 2nd U.S. Circuit Court of Appeals overturned a district court judgment, allowing New York to impose surcharges on drug manufacturers and distributors for their role in the opioid crisis. This ruling allows the state to collect $200 million from drug manufacturers and distributors. The plaintiffs, including the Association for Accessible Medicines, are assessing their legal options.
On September 17, a study published in RAND entitled Nationwide Evaluation of Health Care Prices Paid by Private Health Plans Findings from Round 3 of an Employer-Led Transparency Initiative found that employers and private insurers paid hospitals on average 247% of what Medicare paid for the same services in 2018.
On September 17, GoodRx released data finding that drug prices have increased by 33% since 2014, seeing greater increases than any other medical commodity or service.
On September 17, New York’s Department of Financial Services accused Johnson & Johnson of insurance fraud by downplaying the risks of opioid painkillers; targeting elderly patients for opioid treatment despite the risks of side effects such as falls, fractures and neuropsychiatric symptoms; employing marketing materials to dismiss opioid addiction; and causing increased health insurance costs.
On September 18, the National Committee for Quality Assurance announced a taskforce and released a report entitled Taskforce on Telehealth Policy: Findings and Recommendations. The report included recommendations such as relaxing originating site rules, expanding telehealth services, implementing Health Insurance Portability and Accountability Act privacy rules, and expanding access to broadband and technology infrastructure to promote equity.
On September 18, Supreme Court Justice Ruth Bader Ginsburg died at age 87 of complications from metastatic pancreatic cancer. Justin Ginsburg’s death has set up a political battle between Republicans and Democrats over filling her seat on the Supreme Court. On September 19, President Trump tweeted that he would move “without delay” to fill the seat. Senate Majority Leader Mitch McConnell stated that he would vote on a Trump nominee. Democrats want the seat to be filled after the Presidential election, citing McConnell’s refusal to allow a hearing for Judge Merrick Garland after the passing of Justice Antonin Scalia, during Barack Obama’s presidency, citing an election year.