Insider Update

Broker blog from Delta Dental

The Supreme Court nomination and the ACA: What’s at stake

In the case of Cal­i­for­nia v. Texas, sched­uled to be heard before the Unit­ed States Supreme Court on Novem­ber 10, par­ties chal­leng­ing the Afford­able Care Act (ACA) seek to over­turn the law as uncon­sti­tu­tion­al. What might this case mean for the future of the ACA and insur­ance more wide­ly?

The usu­al ques­tions sur­round­ing the out­come of this case have been great­ly com­pli­cat­ed by the impend­ing appoint­ment of a new jus­tice to the Supreme Court. Depend­ing on which jus­tice is appoint­ed and when, the ACA might be upheld, weak­ened or elim­i­nat­ed entire­ly. 

What’s at stake for the ACA?

The elim­i­na­tion of the ACA could have sig­nif­i­cant con­se­quences, includ­ing:

  • Decreas­es or com­plete loss of state and fed­er­al Exchange enroll­ment, adult Med­ic­aid enroll­ment and com­mer­cial enroll­ment of depen­dents up to age 26
  • A reduc­tion or elim­i­na­tion of indi­vid­ual health insur­ance sub­si­dies, which could erode Exchange enroll­ment
  •  A reduc­tion or elim­i­na­tion den­tal ben­e­fits for adults in Med­ic­aid

So what’s California v. Texas about, anyway?

The state of Texas, along with a group of oth­er states and indi­vid­ual plain­tiffs, is argu­ing that the ACA is uncon­sti­tu­tion­al. Specif­i­cal­ly, they say that the 2017 changes to tax law, elim­i­nat­ing the penal­ty for fail­ure to pur­chase health cov­er­age, essen­tial­ly elim­i­nat­ed the indi­vid­ual man­date, upon which the entire law depend­ed.

Orig­i­nal­ly, the indi­vid­ual man­date required most peo­ple to have health insur­ance cov­er­age. It penal­ized those who failed to com­ply by requir­ing them to pay a finan­cial penal­ty to the IRS. The 2017 Tax Cuts and Jobs Act elim­i­nat­ed the finan­cial penal­ty, but left the man­date in place.

The Texas-led plain­tiffs argue that because the man­date no longer pro­duces rev­enue for the fed­er­al gov­ern­ment, it’s uncon­sti­tu­tion­al. Fur­ther, they say that the man­date can’t be sev­ered from the rest of the ACA, so if the man­date is uncon­sti­tu­tion­al, the entire ACA is uncon­sti­tu­tion­al.

In Decem­ber of 2018, a U.S. Dis­trict Court judge in Texas agreed. In 2019, the case went to the U.S. Court of Appeals for the Fifth Cir­cuit. That court agreed with the Dis­trict Court’s deci­sion that the man­date was uncon­sti­tu­tion­al, but didn’t rule on whether the man­date was insev­er­able. The Supreme Court could rule on the man­date, decide the issue of sev­er­abil­i­ty, or send the case back to the low­er court to deter­mine which ACA pro­vi­sions should be retained if the man­date is elim­i­nat­ed.

On the oth­er side, Cal­i­for­nia, togeth­er with a group of 18 oth­er states, is defend­ing the ACA.

In an unusu­al move, the fed­er­al gov­ern­ment is sid­ing with Texas, though offer­ing argu­ments to allow some ele­ments of the ACA to con­tin­ue.

The Supreme Court has agreed to hear the case, sched­uled for Novem­ber 10. It will decide whether the Texas case has mer­it, whether the man­date is uncon­sti­tu­tion­al and, if so, whether this inval­i­dates the entire ACA, or whether to let low­er courts rule on sev­er­abil­i­ty.

Depend­ing on the out­come of the Supreme Court appoint­ment, sev­er­al sce­nar­ios are pos­si­ble.

Why a new Supreme Court justice matters

Pres­i­dent Don­ald Trump has nom­i­nat­ed Judge Amy Coney Bar­rett to fill a vacant seat on the Supreme Court.  

Bar­rett is cur­rent­ly a cir­cuit judge on the U.S. Court of Appeals for the Sev­enth Cir­cuit. She is report­ed­ly a polit­i­cal con­ser­v­a­tive and con­sti­tu­tion­al orig­i­nal­ist, which means she believes the U.S. Con­sti­tu­tion should be inter­pret­ed as it was under­stood at the time it was writ­ten. As a judge, she has also ruled against the ACA in the past. If appoint­ed, she would replace Jus­tice Ruth Bad­er Gins­burg, known for being one of the Supreme Court’s most lib­er­al jus­tices.

Her con­fir­ma­tion is still ongo­ing. The con­fir­ma­tion has three pos­si­ble out­comes, and each could poten­tial­ly affect the Cal­i­for­nia v. Texas rul­ing:

  • A pre-elec­tion appoint­ment. Bar­rett is appoint­ed before the pres­i­den­tial elec­tion. Repub­li­cans appointees will have a 6–3 advan­tage dur­ing the hear­ing. A rul­ing by a court with a clear con­ser­v­a­tive major­i­ty could make the elim­i­na­tion of the ACA more like­ly than a rul­ing from a more even­ly bal­anced court. As of this post­ing, Bar­rett is expect­ed to be con­firmed by the full Sen­ate on Mon­day, 10/26.
  • A “lame duck” appoint­ment. Bar­rett is appoint­ed, but not in time for the hear­ing. This leaves Repub­li­can appointees with their cur­rent 5–3 advan­tage. This out­come gives the con­ser­v­a­tive jus­tices less of an advan­tage than a pre-elec­tion appoint­ment. How­ev­er, a 5–3 deci­sion, or even a 4–4 tie, would leave the Texas deci­sion in place, which could weak­en the ACA or elim­i­nate it entire­ly.
  • A post-Jan­u­ary 1 appoint­ment. If the Repub­li­cans fail to appoint Bar­rett, and Trump los­es the pres­i­den­tial elec­tion, a Biden appointee could nar­row the court split to 5–4. This appoint­ment wouldn’t come in time to affect the Cal­i­for­nia v. Texas deci­sion, but it could affect future chal­lenges to the ACA.

While one can make assump­tions about pos­si­ble rul­ings based on these out­comes, what specif­i­cal­ly each out­come means in terms of a rul­ing is unclear, said Jeff Album, Vice Pres­i­dent of Pub­lic & Gov­ern­ment Affairs for Delta Den­tal.

“We’re not sure how the con­ser­v­a­tive judges are going to hear this par­tic­u­lar case,” Album said. “Con­ser­v­a­tives are thought to be orig­i­nal­ists or strict inter­pre­ta­tion­ists, and if they were tru­ly to fol­low an orig­i­nal­ist phi­los­o­phy, strik­ing the entire­ty of the ACA is not con­sis­tent with that.”

That’s because, Album said, if Con­gress had intend­ed to over­turn the ACA, the 2017 tax cut bill would have explic­it­ly called for such an over­turn, and the mer­its of that debat­ed open­ly in hear­ings. That this didn’t hap­pen speaks to the intent of Con­gress, which is an impor­tant con­sid­er­a­tion for a Supreme Court reach­ing a deci­sion based on orig­i­nal­ist think­ing.

“Strict inter­pre­ta­tion­ists are loath to reverse an act of Con­gress,” Album said. “They don’t want to counter Con­gres­sion­al intent, and they cer­tain­ly don’t want to leg­is­late from the bench. And if you lis­ten to remarks that Amy Bar­rett has been mak­ing in the hear­ings, she’s gone out of her way to say she doesn’t believe that it’s a judges’ job to do any­thing oth­er than enforce the Con­sti­tu­tion and enforce the law.”

Still, that’s not a guar­an­tee that Bar­rett will rule to pre­serve the ACA, Album said.

“We know that Amy Bar­rett is not fond of the ACA,” Album said. “She’s ruled against it many times, so she already has that track record.”

So what if the ACA is struck down? Then what?

If the Supreme Court rules to strike the entire bill, the impacts are “going to be pro­found,” Album said.

In that sce­nario, blue states such as Cal­i­for­nia, New York, Mass­a­chu­setts and Mary­land would pass state laws to attempt to pre­serve some ele­ments of the ACA, Album said, but they might lack fed­er­al sup­port for the sub­si­dies peo­ple depend on to afford those pro­grams. Few red states, mean­while, would be pre­pared to run their own Exchanges with­out the fed­er­al­ly facil­i­tat­ed mar­ket­place. This could lead to enroll­ment in Exchanges drop­ping sub­stan­tial­ly, Album said.

And this could lead to sub­stan­tial enroll­ment declines for insur­ance com­pa­nies with size­able man­aged Med­ic­aid and Exchange busi­ness.

About 1.9 mil­lion adults who have pur­chased option­al, non-sub­si­dized den­tal ben­e­fits in the Exchanges could lose their cov­er­age. Young adults between the ages of 19 and 26 who were added to com­mer­cial employ­er cov­er­age as a result of the ACA will lose that cov­er­age if the ACA is com­plete­ly struck.

Con­gress could decide to pro­vide relief, but its abil­i­ty to do so is depen­dent on the results of the Novem­ber elec­tion. We’ll take a clos­er look at what the elec­tion results could mean for these issues in an upcom­ing arti­cle.


Regard­less of what hap­pens, Album said, don’t expect any­thing to hap­pen any time soon. Fol­low­ing the Cal­i­for­nia v. Texas hear­ing in Novem­ber, the deci­sion won’t be announced until April or May, and pos­si­bly as late as June.

And if the Court agrees that the man­date is sev­er­able and sends that ques­tion back down to the low­er courts, it could take years before that out­come and the addi­tion­al legal chal­lenges it will face.

A final twist is that while the cur­rent admin­is­tra­tion is argu­ing that the man­date should be struck down, it’s also urg­ing that low­er courts rule which pro­vi­sions should and shouldn’t be inval­i­dat­ed.

“Even the Trump admin­is­tra­tion has sug­gest­ed, and per­haps will argue in the Supreme Court, that some things should be left alone,” Album said. “We just don’t know which things they would cher­ry-pick in terms of what should be insev­er­able and what shouldn’t.”

How has COVID-19 affected the dental industry?

The new coro­n­avirus (COVID-19) pan­dem­ic has sig­nif­i­cant­ly altered how the den­tal indus­try oper­ates. Here are three ways the pan­dem­ic has changed the den­tal insur­ance land­scape.

Timid patients

There’s an almost dai­ly debate of what con­sti­tutes a good rea­son for leav­ing your house right now. Indi­vid­ual states are at dif­fer­ent stages of re-open­ing or shut­ting back down. With so much uncer­tain­ty, it makes sense that 42% of patients respon­dents may skip or post­pone care out of fear or dis­com­fort, par­tic­u­lar­ly for non-emer­gency pro­ce­dures.

This on top of the 61% of peo­ple who already suf­fer den­tal fears means that show­ing patients the exten­sive infec­tion con­trol mea­sures in place may be an impor­tant aspect of get­ting them back in the chair.

A boom in teledentistry

Tele­den­tistry is a way for den­tists to pro­vide a vir­tu­al con­sul­ta­tion through a phone call, text, or video chat. Den­tists can use tele­den­tistry to address prob­lems that don’t need an office vis­it, which allows them to save time and mon­ey on infec­tion con­trol mea­sures like per­son­al pro­tec­tive equip­ment and san­i­tiz­ing office spaces. This gives prac­tices an ide­al way to assess and triage patients with­out a risk of expo­sure, while also poten­tial­ly allow­ing a den­tist to see more patients in a day.

Even before the pan­dem­ic, tele­den­tistry was show­ing itself as an inter­est­ing and promis­ing addi­tion to tra­di­tion­al den­tal care. It allows den­tists to see patients who are at-risk, live in rur­al areas, or those who just desire the con­ve­nience as well as poten­tial­ly decreas­ing costs of den­tal care over­all.

The key ingre­di­ent to the suc­cess of tele­den­tistry is wide­spread patient accep­tance. One pos­si­ble issue, accord­ing to a review of survey’s about tele­den­tistry, is that patients may feel like the qual­i­ty of care received remote­ly is not as high as care received in per­son. How­ev­er, users in one study were gen­er­al­ly sat­is­fied with the expe­ri­ence and respon­dents in anoth­er sur­vey indi­cat­ed that they would use tele­den­tistry if it was avail­able.

Americans losing health insurance

The biggest shift has been in the num­ber of peo­ple with access to health insur­ance. With mil­lions of jobs lost, many indi­vid­u­als and their fam­i­lies have lost both their cov­er­age from their employ­ers as well as a steady income. Accord­ing to researchers from the Urban Insti­tute, some indi­vid­u­als will be able to become insured under a fam­i­ly member’s pol­i­cy, through the Afford­able Care Act mar­ket­place, Med­ic­aid or by choos­ing indi­vid­ual cov­er­age through a bro­ker. Still, that leaves almost 3.5 mil­lion peo­ple who may become unin­sured. With the end of fed­er­al pro­grams to sup­port those who have lost their jobs, one big ques­tion for the den­tal indus­try is whether or not peo­ple will make the choice to go to the den­tist.

Dentists seen as an economic indicator

The den­tal indus­try may be a good indi­ca­tor of whether Amer­i­cans have ful­ly recov­ered from the pan­dem­ic, accord­ing to a June New York Times arti­cle. This is because den­tists offer a unique ser­vice that has no clear alter­na­tive.

Since the coro­n­avirus (COVID-19) pan­dem­ic hit the U.S. in ear­ly March, the nation­al econ­o­my has seen a down­turn and a sub­se­quent uptick. The den­tal indus­try expe­ri­enced an ampli­fied ver­sion of these nation­al employ­ment trends, with half of all den­tal work­ers los­ing their jobs in March and April, and 94% of den­tist offices rehir­ing their full staff by mid-August.

Getting dentists back into the office

Stim­u­lus pro­grams may be a key fac­tor in help­ing den­tists to weath­er this storm. Prac­tices that took part in the fed­er­al Pay­check Pro­tec­tion Pro­gram were more like­ly to remain open than those that didn’t.

Even after job gains since June, the den­tal indus­try still has 289,000 few­er work­ers than it did before the pan­dem­ic. That sug­gests to Bet­sey Steven­son, a Uni­ver­si­ty of Michi­gan eco­nom­ics pro­fes­sor quot­ed in the Times arti­cle, that the indus­try — and the rest of the Amer­i­can econ­o­my — is far from recov­ered.

What does the future look like?

Though den­tist offices have been open for sev­er­al months, it’s unclear whether their patient bases will return. In mid-June, most states gave den­tist offices the go-ahead to reopen ful­ly, but in August patient vol­umes were still low­er than what they were before the pan­dem­ic. The rate at which patients were return­ing has even tapered off as of mid-August and some econ­o­mists don’t pre­dict patient vol­umes to return ful­ly before the end of 2020.

This hes­i­ta­tion is a sign of mul­ti­ple prob­lems fac­ing patients dur­ing the pan­dem­ic. Some patients may feel cau­tious about remov­ing their masks for a close-up pro­ce­dure. Oth­ers may think that since they haven’t noticed any den­tal issues since the pan­dem­ic start­ed, they can go a lit­tle longer with­out get­ting a den­tal clean­ing. Some peo­ple can sim­ply no longer afford den­tal pro­ce­dures after los­ing their jobs and their insur­ance ben­e­fits through their employ­ers. Econ­o­mists who spoke to the Times pre­dict that employ­ment rates for den­tists will even­tu­al­ly return to where they were before the virus hit, even though it may be slow going.

Add vision and hearing deals to your dental sales

Delta Den­tal plans have always been great when it comes to oral health and well­ness. With the addi­tion of deals on LASIK eye surgery from Qual­Sight and hear­ing aids from Ampli­fon, your clients can get even more val­ue from their plans.

What can QualSight and Amplifon do for you?

Every Delta Den­tal enrollee now has access to great deals on hear­ing aids and LASIK eye surgery from Qual­Sight and Ampli­fon. This means your clients can get dis­counts of 40–50% off the aver­age price of tra­di­tion­al LASIK from QualSight’s expe­ri­enced sur­geons. With Ampli­fon, they get an aver­age of 62% off retail hear­ing aid pric­ing, backed by a best price guar­an­tee.

Vision cor­rec­tive ser­vices and Amplifon’s hear­ing health care ser­vices aren’t insured ben­e­fits. Delta Den­tal makes the vision cor­rec­tive ser­vices pro­gram and hear­ing health care ser­vices pro­gram avail­able to enrollees to pro­vide access to the pre­ferred pric­ing for these ser­vices.

What does this mean for you?

Now the Delta Den­tal plans you sell come with even more val­ue-added ser­vices, with no extra effort on your end. After your clients buy a Delta Den­tal plan, they can call Qual­Sight and Ampli­fon direct­ly to take advan­tage of the dis­counts. The ded­i­cat­ed rep­re­sen­ta­tives from Qual­Sight and Ampli­fon will walk them through the process, includ­ing sched­ul­ing appoint­ments and coor­di­nat­ing fol­low-up care. There’s even a fly­er you can print or send to your clients.

Now what?

To learn more about these deals and see your oth­er resources, take a look at your bro­ker resources page or down­load the brochure. You can also vis­it Qual­Sight and Amplifon’s pages for Delta Den­tal enrollees.

Direct deposit puts commissions on a schedule

There are many good rea­sons to automat­ing your com­mis­sions, espe­cial­ly in times of eco­nom­ic uncer­tain­ty.

What are the advantages of setting up direct deposits?

  • Tim­ing. With direct deposit, you receive your com­mis­sions on the 10th  of the month, every month. This pre­dictable sched­ule helps you more accu­rate­ly plan your finances. Rather than wait­ing for checks to arrive and clear, you’ll always know when the mon­ey reach­es your account.
  • Con­ve­nience. Make reg­u­lar trips to the bank a thing of the past. Direct deposit saves you dri­ving time, traf­fic stress, poten­tial mail delays and long ATM lines. Besides, what’s eas­i­er than auto­mat­ic?
  • Secu­ri­ty. In case of mishap, learn­ing what went wrong with a direct deposit is as sim­ple as call­ing or email­ing your finan­cial insti­tu­tion. Direct elec­tron­ic trans­fers make stolen let­ters, mail delays and incor­rect deliv­er­ies a thing of the past.

How to sign up for direct deposit

If you’re inter­est­ed in direct deposit, it’s sim­ple to set up. Log in to your online account. Then go to the Busi­ness Infor­ma­tion tab and then the Pay­ment Infor­ma­tion tab. Your pay­ments will be sent direct­ly to your account by the 10th busi­ness day of the month.

If you’d rather, fill out the direct deposit form (PDF, 90 KB) and scan a void­ed check. Save the com­plet­ed form, then send both to

Teledentistry: what it is, and what it means for your clients

Busi­ness­es, schools and pub­lic space have been reopen­ing for months now, and that includes den­tal offices. As part of the reopen­ing efforts, more den­tists and their patients have turned to tele­den­tistry, an emerg­ing trend that has the pow­er to reshape the indus­try as we know it. Here are some com­mon ques­tions about tele­den­tistry, as well as our thoughts about the impact tele­den­tistry will have on the indus­try and how Delta Den­tal is address­ing it.

What is teledentistry?

Tele­den­tistry is when a den­tist con­ducts a vir­tu­al con­sul­ta­tion via phone, text or video to diag­nose issues, offer care advice and deter­mine if an in-per­son vis­it is nec­es­sary.

Tele­den­tistry appoint­ments can be syn­chro­nous, such as a video call where the den­tist and patient are inter­act­ing with each oth­er, or asyn­chro­nous, such as when the patient sends a descrip­tion of his or her sit­u­a­tion and a pho­to and waits for a reply.

Are teledentistry appointments covered by insurance?

Yes. Delta Den­tal cov­ers tele­den­tistry ser­vices as prob­lem-focused exams. That means they fall into the cat­e­go­ry of diag­nos­tic care, and are sub­ject to the same rules and lim­i­ta­tions (for exam­ple, D&P is usu­al­ly cov­ered at no cost to the patient, but only a cer­tain num­ber of such appoint­ments are cov­ered each year).

What kind of equipment is needed for teledentistry appointments?

The equip­ment and soft­ware need­ed may vary based on den­tists’ pref­er­ences and capa­bil­i­ties. Tele­den­tistry may require noth­ing more than a phone or may require a smart device, com­put­er or spe­cial­ized app.

If dental offices are reopening, why is teledentistry relevant?

Den­tist offices may open, but that doesn’t mean that patients won’t ben­e­fit from tele­den­tistry solu­tions. Just as work­ing from home has shown the val­ue of video meet­ings and con­nect­ing with cowork­ers with­out being in per­son, patients may find tele­den­tistry a use­ful option when seek­ing den­tal care.

Addi­tion­al­ly, not all patients are will­ing to return to the den­tists. Sur­veys this past August by the Amer­i­can Den­tal Asso­ci­a­tion (ADA) have found that 15% of peo­ple are wait­ing for a med­ical break­through such as a vac­cine before they’ll go back to the den­tist. Whether your clients are eager or hes­i­tant to return the den­tist, tele­den­tistry is the per­fect tool for stay­ing in touch, get­ting care and get­ting advice with­out going into the dentist’s office.

What is Delta Dental doing with regards to teledentistry?

Delta Den­tal cov­ers tele­den­tistry appoint­ments at the same ben­e­fit lev­els as diag­nos­tic ser­vices to ensure that enrollees have cov­er­age for their den­tal needs while stay­ing safe from COVID-19. We’re encour­ag­ing den­tists to use tele­den­tistry for emer­gency diag­noses and non-emer­gency con­sul­ta­tions. Delta Den­tal den­tists are also eli­gi­ble for dis­counts on tele­den­tistry ser­vices. What’s more, Delta Den­tal is look­ing into part­ner­ships with tele­den­tistry com­pa­nies to improve the expe­ri­ence for both den­tists and their patients.

How will teledentistry change the industry?

COVID-19 has been dis­rup­tive to the entire econ­o­my, and the den­tal indus­try is no excep­tion. That dis­rup­tion is more than just eco­nom­ic, how­ev­er. Expec­ta­tions about what it means to go to the den­tist are also chang­ing. Den­tal patients may expect tele­den­tistry to be includ­ed as a stan­dard part of any insur­ance plan (for exam­ple, Kaiser Per­ma­nente is launch­ing plans with a heavy focus on tele­health) and they may shy away from plans and den­tists that can’t accom­mo­date it. Patients who live in remote areas may also find expand­ed access to pro­fes­sion­al care because of tele­den­tistry.

For den­tists, tele­den­tistry is more than just anoth­er option or add-on when it comes to pro­vid­ing care and in-per­son treat­ments. It may become a new source of income in the form of see­ing more patients vir­tu­al­ly.

For bro­kers, stay­ing on top of the lat­est devel­op­ments, indus­try best prac­tices and cus­tomer expec­ta­tions about tele­den­tistry will become ever more impor­tant.

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