California Dental Association, et al. v. Delta Dental of California

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“All California dentists who are or were signatories to, or are or were parties to or subject to, a Participating Dentist Agreement with Delta Dental of California for participation in its Premier network at any time from January 1, 2011, through December 27, 2017.”

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• During the pendency of this Lawsuit and a preceding arbitration, Delta Dental has refrained from reducing maximum amounts allowed for Contracted Fees for what will be more than five years. As a result, Premier Dentists collectively have received many millions of dollars more than they otherwise would have received had Delta Dental reduced the maximum amounts allowed for Contracted Fees under the PDA in 2013. However, there was a substantial possibility that plaintiffs could not forever prevent amendments to the PDA or potential future reductions to the maximum amounts allowed.


• The provisions in the Amended PDA requiring 120 calendar days’ notice and, in particular, requiring an individualized financial calculation for each Premier Dentist of the impact of any future reduction in maximum amounts allowed, are significant long- term and permanent benefits to Premier Dentists.  Delta Dental’s provision of information about which CDT  codes are affected by a reduction, as well as the significantly longer notice period for future reductions and material changes to the PDA, are important benefits that enhance Premier Dentists’ ability to engage in meaningful long-term planning for their practices.


• The Amended Settlement Amount of up to $65,029,299 to be paid to eligible Settlement Class Members, which is in addition to the benefits to Premier Dentists from the delay in reductions in maximum amounts allowed described above, will provide monetary compensation within a reasonable time for Premier Dentists who were affected by Delta Dental’s application of the INAP.  This monetary relief could not have been obtained except through subsequent litigation, because as an association CDA (which brought the initial complaint in this case) does not have standing to seek individual damages for dentists, even for its members. The law requires that damages be sought either by individual actions or a class action.


• CDA and the individual class representatives were legally constrained by applicable federal and state antitrust laws in their ability to collectively negotiate with Delta Dental regarding specific fees, fee levels, fee-setting provisions or fee-setting limitations. In addition, Delta Dental contends that the Knox-Keene Act permits a health care service plan like Delta Dental to make material changes to its provider agreements, including a change to the plan that affects rates and fees paid to providers.


• The outcome of continued litigation was uncertain and not knowable. It was possible that, absent a settlement, plaintiffs might not obtain any relief whatsoever after years of expensive litigation. Moreover, years of continued litigation in an effort to block Delta Dental from adjusting fees in response to competitive market conditions posed a potential threat to the long-term viability of Delta Dental plans that treat Premier Dentists as in-network providers.


• The Settling Parties recognized that the only mechanism to reach a settlement that would provide relief to all Premier Dentists and provide closure on the disputed issues is through a class action, which subjects the Proposed Amended Settlement to the Court’s review to ensure that it is fair, reasonable and adequate for Class Members and also affords Class Members the opportunity to object to, or opt out of, the Proposed Amended Settlement.

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1. The Amended PDA amends the definition of “Contracted Fee” in the Rules section to provide: 
   “In the event of a decrease in Premier Contracted Fee maximum amounts allowed or levels or amounts of fee reimbursement generally applicable to Premier dentists (other than a decrease resulting solely from changes to the Code on Dental Procedures and Nomenclature (CDT  codes)), Delta Dental will provide participating dentists with 120 calendar days’ notice.  Such notice will provide each affected Premier dentist (1) his/her Contracted Fees affected by the reduction(s) and (2) the potential financial impact of the reduction(s) on his/her Contracted Fee reimbursements from Delta Dental based upon the Premier dentist’s submissions for procedures to Delta Dental over the twelve (12) month period ending on the most recent complete calendar quarter preceding the notice and the assumption that the participating dentist will perform the same set of procedures during the twelve (12) months following the reduction(s). If the dentist does not wish to accept the new Premier Contracted Fees, the dentist shall so advise Delta Dental and terminate his/her participating dentist agreement within the 120 calendar day notice period. Nothing herein requires Delta Dental to provide any notice of any INAP limit or any change in the INAP limit (including the amount, rate or percentage) or any specific maximum amounts allowed for specific CDT codes.”


2. The Amended PDA is also being amended to include the following in Section 13 of the Rules:
   “Any material amendment(s) made as provided [in this Section 13] is/are binding upon Delta Dental participating dentists and effective 120 calendar days from the time Delta Dental mails complete and accurate notice to the participating dentist of the amendment(s), which notice will include a link to an online site which provides a redline identifying all changes. If the dentist declines to be bound by the amendment(s), the dentist shall so advise Delta Dental and terminate his/her participating dentist agreement within the 120 calendar day notice period.”


3. Delta Dental will provide the notices described above in Sections II.1.a and II.1.b to CDA for the benefit of all Premier Dentists no less than 12 calendar days before providing the notice to Premier Dentists.  After Delta Dental provides notice to Premier Dentists, CDA will be free to communicate with Premier Dentists (whether or not members of CDA) regarding its analysis of the nature and effect of the amendments.


4. Other than the amendments described above, Delta Dental has the right to determine unilaterally the provisions of the PDA (including the Rules), including without limitation any provisions relating to fee reimbursement; levels or amounts of fee reimbursement; methods, procedures or formulas for determining fee reimbursement; dispute resolution; and Delta Dental’s right to amend the PDA (including the Rules), provided that nothing in the Proposed Amended Settlement is an agreement that Delta Dental may violate any statutory or common law right by future amendment or other conduct.


5. Delta Dental  has made certain other amendments to the PDA  that  are not required by this Proposed Amended Settlement and are not subject to Court approval. Those amendments are redlined (but not shaded) in the attached redlined version of the PDA’s Rules, which is also available to you on this website and on Delta Dental’s website at www.deltadentalins.com/dentists/.  If you signed a PDA with Delta Dental on or after May 1, 2017, your PDA already contains these amendments.

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“[1] In addition to and not in lieu of the effect of any final judgment entered in accordance with the Amended Settlement Agreement, and in consideration of Delta Dental’s agreement to pay the Amended Settlement Amount and for other valuable consideration provided by the Amended Settlement Agreement, each Settlement Class Member and CDA hereby expressly and irrevocably waives, and fully, finally, and forever settles, discharges, and releases the Released Parties, from any and all manner of claims, demands, actions, suits, and causes of action, whether individual, class, derivative, representative, or otherwise in nature, for damages (whether compensatory, consequential, special, statutory or punitive), interest, costs, expenses, attorneys’ fees, fines, civil or other penalties, or other payment of money, or for injunctive, declaratory, or other equitable relief, whether directly, indirectly, derivatively, or otherwise, whether known or unknown, suspected or unsuspected, in law or in equity, that are based on, arise from or relate directly to Delta Dental’s conduct, acts or omissions alleged in the Second Amended Complaint including without limitation the determination or application of Fee Reimbursement Limits, and/or Contracted Fees for Premier Dentists prior to the Effective Date of the Amended PDA, Delta Dental’s determination or application of INAP, Delta Dental’s amendments to the PDA announced on November 17, 2010, Delta Dental’s amendments to the PDA announced on August 1, 2013, and/or Delta Dental’s notice to dentists of those amendments, and/or the claim that the terms of the current or any prior version of the PDA, the covenant of good faith and fair dealing implied in the current or any prior version of the PDA, or any other law applicable to the current or prior versions of the PDA preclude the amendment proposed by Delta Dental to the Amended PDA, regardless of when such claims accrue or accrued, for the period through the Effective Date of the Amended PDA  (the “Release Date”) as provided herein (the “Released Claims”).  Settlement Class Members and CDA shall not, after the Release Date, seek to establish liability against the Released Parties based on, arising from or relating directly to the conduct, acts or omissions asserted in the Second Amended Complaint.  Settlement Class Members, CDA and the Released Parties agree that the Amended Settlement Agreement may be pleaded as a bar to a lawsuit, arbitration demand or administrative claim, and an injunction may be obtained, preventing any action from being initiated or maintained in any lawsuit, arbitration or administrative proceeding sought to be prosecuted by or on behalf of Settlement Class Members or CDA with respect to the Released Claims.

[2] In addition to the provisions of Section [1] above, each Settlement Class Member and CDA expressly agrees that, upon the Release Date, he, she or it waives and forever releases with respect to the Released Claims any and all provisions, rights and benefits conferred by either (a) section 1542 of the California Civil Code, which reads:

Section 1542. General release; extent.

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

or (b) any law of the United States or any state or territory of the United States, or principle of common law, which is similar, comparable or equivalent to section 1542 of the California Civil Code.  Each Settlement Class Member and CDA acknowledges that he, she or it may hereafter discover facts other than or different from those which he, she or it knows or believes to be true with respect to the Released Claims, but each Settlement Class Member and CDA hereby expressly waives and fully, finally, and forever settles and releases, upon the Release Date, any known or unknown, suspected or unsuspected, contingent or non-contingent claim based on, arising from or relating directly to the conduct, acts or omissions alleged in the Second Amended Complaint, whether or not concealed or hidden, without regard to the subsequent discovery or existence of such different or additional facts.”

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1. state the name of this Lawsuit, California Dental Association, et al. v. Delta Dental of California, San Francisco County Superior Court Action No. CGC-14-538849;


2. state your full legal name, address, telephone number and Dental Board of California license number;


3. state the time period during which you believe that you have been a Premier Dentist with Delta Dental pursuant to a PDA based on available records or, if records are not available, to the best of your recollection;


4. state that you are opting out of the Proposed Amended Settlement; and


5. be signed and dated by you or your counsel if you are represented by counsel.

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1.  the name of this Lawsuit, California Dental Association, et al. v. Delta Dental of California, San Francisco County Superior Court Action No. CGC-14-538849;


2.  your full name, address, telephone number and Dental Board of California license number;


3.  the time period during which you believe you have been a Premier Dentist with Delta Dental pursuant to a PDA based on available records or, if records are not available, to the best of your recollection;


4.  a description of the nature of your objection and the grounds for your objection, accompanied by any legal or factual support for the objection known to your or your counsel if you are represented by counsel;


5.  the identity of counsel who represent you in connection with this matter; and


6.  your signature or your counsel’s signature, if you are represented by counsel, and the date of the signature.

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