#TexasFoldEm, Day 97: Reminder that the #ACA is still very much in jeopardy.

The midterms are over, and the Democrats won back the U.S. House, so the ACA is (mostly) safe at last, right?

Well...maybe. In addition to the ongoing regulatory sabotage by the Trump Administration to undermine, weaken and generally piss all over the law as much as possible, there's also still a little thing called Texas vs. Azar, aka the #TexasFoldEm federal lawsuit. Oral arguments were held way back in early September, and right-wing Judge O'Connor claimed that he'd rule on a preliminary injunction "quickly" afterwards.

As a reminder, here's the #TexasFoldEm case in a single image:

Well, today is December 11th, and there's been nary a peep from Judge O'Connor. Does 97 days later count as "quickly"? In judiciary time, I suppose it might.

In addition to the naked political strategy of holding off until after the midterms were out of the way to lay down the hammer, there's another timing issue for the GOP: We're in the middle of the 2019 Open Enrollment Period (and in fact it will be over in most states in less than a week). People are enrolling, the carriers have locked-in contracts through 12/31/19 with the federal and/or state governments on top of their contracts with individual policyholders.

The most likely scenario seems to be for O'Connor to wait until December 17th (after the end of the official Open Enrollment Period...the 16th is a Sunday) to issue an injunction against the ACA effective January 1st, 2019...but to also issue a stay of his own ruling at the same time, pending apeal to the full Circut Court and/or the U.S. Supreme Court, or perhaps making it effective January 1st, 2020 instead.

However...there's also the possibilty that he won't include a stay, thus making it effective immediately. This would have a catastrophic effect on the entire U.S. healthcare system. And even if he doesn't, there'd still be a massive Sword of Damocles dangling over the heads of everyone...again.

In a second-worst-case scenario, he could strike down "only" the ACA protections (ie, the Blue Leg above). If that happened, then oddly enough, not much would change for most ACA enrollees in calendar year 2019 (I think), because the carriers are locked into their current contracts. There'd still likely be plenty of abuses, however, and anyone who tried to enroll during the off-season via a Special Enrollment period might find themselves truly screwed, along with other oddball populations. I'm not honestly sure how bad the fallout would be here.

In an absolute worst-case scenario, I believe Judge O'Connor could strike down the entire ACA (protections and subsidies and Medicaid expansion) effective immediately, which would be utterly devastating: Around 15 million people on Medicaid expansion would be cut off, along with 9 million people receiving subsidies. While the carriers are locked into their current contracts through December 31, 2019, there's an exit clause provision which states that if Advance Premium Tax Credits (APTC) are cut off, the carriers can terminate their contracts pretty much immediately...subject to state laws regarding breach of contract and consumer protection, that is.

That means in some states the carriers might be stuck eating massive losses for the full calendar year, guaranteeing that they'd bail or even go belly-up effective 2020...while in other states, they might just cut off everyone who just signed up for coverage less than a month after their 2019 policies kick in.

You may recall that this is the same exit clause I was shouting from the rooftops about from the moment the 2016 election results came in and repeatedly for much of last year...except that time it was due to Trump's impending cut-off of Cost Sharing Reduction (CSR) reimbursement payments. Fortunately, the carriers, state regulators and state ACA exchanges put their heads together and came up with #SilverLoading and the #SilverSwitcharoo as a workaround which neatly resolved the issue.

Unfortunately, this time around there would be no such safety release valve.