This article was published on www.maverick-law.com 

Alarming reports can regularly be found in the media about increasing waiting lists in mental healthcare, mandatory bans on new admissions (see also here and here) and access to adequate urgent care (see also here and here). The question in such cases is often what role the Dutch Healthcare Authority (“NZa”) plays and what its statutory tasks are. The NZa exclusively supervises correct compliance with the duty of care under Article 11 of the Zorgverzekeringswet (Healthcare Insurance Act), which imposes a duty of care on all healthcare insurers. That duty of care means that healthcare insurers must ensure that their insured are provided in a timely manner and within reasonable travel time with the care to which they are entitled under their (basic) healthcare insurance. The healthcare insurer may do so either (i) by providing healthcare itself (which is rarely or never the case in practice) or (ii) by ensuring that it enters into contracts with a sufficient number of healthcare providers that provide that care (contracted care insurance) or reimbursing the costs involved (non-contracted care insurance). The duty of care is therefore, in fact, a healthcare procurement obligation that applies exclusively to the healthcare insurer. The NZa checks whether healthcare insurers procure or reimburse sufficient and adequate healthcare, so that their insured receive the care to which they are entitled (see also this blog and this blog).

NZa identifies increased focus on enforcement of the duty of care

These last few years the NZa has consistently found that healthcare procurement and compliance with the duty of care are in order. In the past ten years, the NZa has therefore imposed very few sanctions in enforcing the duty of care. It is common knowledge that this does not mean that the duty of care is actually observed. As the waiting times in mental healthcare and other types of care increased, (former) Minister Schippers stated in July 2017: “Funding is not the problem though, the sector has underspent by €288 million. Ms Schippers has decided that that amount remains available to the sector to implement the agreements made. The first results must be visible by Christmas 2017 already; the problem must be solved within a year (by 1 July 2018). […] Ms Schippers is pleased to have reached agreement with all these parties: “Those agreements lead to general awareness of the urgency; excessive waiting lists must be a thing of the past within a year’s time. Sufficient funds are available, there is a surplus every year. Collaboration and prioritisation are key.” Even when the NZa itself found that the Treek standards (the maximum acceptable healthcare waiting timed) were being exceeded, it did not impose sanctions on the grounds of the duty of care in 2017. It did issue a warning to the healthcare insurers in 2007 to procure sufficient healthcare. The enforcement of the duty of care of healthcare insurers (Article 11 of the Healthcare Insurance Act), the cornerstone of our healthcare system, is becoming increasingly important. The waiting list problems in mental healthcare, as well as in other sectors, were not solved in 2018 despite the outline agreement reached, which aimed to reduce waiting times. The maximum waiting time within which a patient must receive mental healthcare treatment (the Treek standards) is still being exceeded in many cases. So far, the NZa appears to have focused its supervision primarily on healthcare providers, in the belief that they must more clearly communicate the healthcare waiting times. That is only part of the problem, because the healthcare insurers’ poor contracting practices (such the turnover ceilings imposed being too low) are the root of the problem. It therefore makes sense that Mr Blokhuis, State Secretary for Health, Welfare and Sport, is pressing for adequate NZa supervision of correct compliance with the duty of care by healthcare insurers. Since the Treek standards are being systematically breached, we will also have to await, in this regard, the measures that the NZa will take in relation to healthcare insurers. The NZa cannot impose fines on healthcare insurers in enforcing the duty of care, but it can issue directions or impose administrative enforcement orders and publicise those measures.

Parallels with lack of effective NZa approach to increasing policy jungle and enforcement of mandatory healthcare procurement rules

The NZa’s position regarding the enforcement of the duty of care is very similar to the manner in which the policy jungle is being handled. A 2017 report of the Netherlands Authority for Consumers & Markets (“ACM”) and the NZa on the policy jungle found that the NZa had not yet enforced existing rules and proposed that the NZa should enforce existing rules (or should do so more strictly) (see pp. 41 et seq.). That is exactly where the shoe pinches in the NZa supervision of healthcare procurement and the enforcement of the duty of care. The NZa and ACM now, in 2019, still find that the policy jungle exists and is expanding. The NZa recently reported, for instance: “We believe that healthcare insurers should again consider getting rid of virtually identical policies.” ACM and the NZa are still not effectively taking action on this point; see also this blog. That is remarkable: why allow the policy jungle to increase when the NZa can force healthcare insurers to immediately put an end to that sham choice (under Article 40 of the Wet marktordening gezondheidszorg (Health Care (Market Regulation) Act)). But also other rules that apply to healthcare insurers are not effectively enforced by the NZa. So far, for instance, the NZa has not been inclined to take active and adequate enforcement measures against the breach of rules by healthcare insurers in healthcare procurement (“Healthcare Procurement Regulations”). Instead, the NZa has given warnings (although imposing fines is also possible and often appropriate). The most recent warning given to healthcare insurer Zorg en Zekerheid is the fifth formal warning that the NZa has given to healthcare insurers in 2019. Previously, in 2019, the NZa warned healthcare insurers CZ, VGZ (twice) and DSW that they were in breach of the Healthcare Procurement Regulations. Additionally, the NZa did already impose a fine on DFZ (a division of Zilveren Kruis) for breaching the Healthcare Procurement Regulations. More information on this subject matter can be found here, here and here. The NZa has now repeatedly stated that it will take stricter measures against breaches of the Healthcare Procurement Regulations by healthcare insurers. In light of the frequency of the breaches already established by the NZa, that is a necessary step in the right direction with a view to effective NZa supervision of the healthcare procurement process. It was not the case that the NZa was unable to impose fines in these cases, but rather that it was unwilling to fine healthcare insurers. That position is remarkable because the NZa has been succeeding to penalise healthcare providers by imposing large fines on them for many years now: see, for instance, here, here, here, here, here and here.

NZa has identified waiting lists problems for years without taking action

The NZa nevertheless seems intent on monitoring healthcare insurers more closely. At the end of 2017 the NZa published its new Policy Rules on the Duty of Care Supervision Framework. In that document the NZa stated that it is focusing more on principle based supervision. According to the NZa, that enforcement strategy is aimed at preventing and solving problems regarding the duty of care. The NZa’s position that prevention is better than cure is a sound approach that is in the interest of consumers, whose interests the NZa must promote. Healthcare insurers have for many years consistently imposed contracts with turnover and other ceilings on healthcare providers. If those ceilings are too low to allow healthcare providers to meet the actual healthcare demand, healthcare insurers must take timely action. The NZa believes that healthcare insurers can solve that problem by entering into additional contracts in good time. But it has also found that healthcare insurers are not yet doing so successfully. With regard to the Mental Healthcare Contracting Monitor, for instance, the NZa concluded in May 2019: “If a healthcare provider reaches the ceiling, the healthcare insurer may refer the insured to another healthcare provider or may increase the ceiling. We found in our Monitor that additional contracting does not always run smoothly. Healthcare insurers often take a long time to assess such a request. They need to do better. The additional contracting process could also be clarified. Healthcare providers in their turn could state in good time that they expect to reach the ceiling.” If healthcare insurers structurally take that approach and, as former Minister Shipper has stated, sufficient funds are available and waiting lists have arisen or are imminent, that gives rise at the very least to the question whether that insurer is adequately implementing its duty of care. In light of its principle based enforcement strategy regarding the duty of care (aimed at preventing and solving problems), the NZa should at least take a close look at such practices. That way it could be prevented that in a year’s time (as in the case of the policy jungle) a report is published in which it is established in retrospect that the NZa could have enforced existing rules (or could have done so more strictly).

Effective NZa supervision of directive role of healthcare insurers is crucial to the functioning of the healthcare system

The NZa was established to ensure that healthcare insurers that play a directive role in the healthcare system comply with mandatory legislation and regulations regarding their key tasks, which, indisputably, include the timely and orderly procurement of healthcare and the correct sale of healthcare insurance policies. The NZa is therefore crucial to the sound functioning of our healthcare system and the enforcement of the essential aspects involved, such as the duty of care. The NZa has learnt from experience that if it requests healthcare insurers – which, according to their own statements, play a directive role in the healthcare system – to make changes on their own initiative year in, year out, they do not comply with those requests, or at least not rapidly and of their own accord. The policy jungle is a case in point. The Healthcare Procurement Regulations (which supplement the non-binding Good Contracting Practices, which healthcare insurers did not observe) are another example. The same can also be said of the duty of care that exclusively applies to healthcare insurers. In all these cases the consumer is the victim of ineffective enforcement by the NZa; according to ACM and the NZa, the policy jungle creates a sham choice for consumers that makes it difficult for them to make effective choices. The NZa believes that breach of the Healthcare Procurement Regulations may lead to the contracting process not being completed in time, to the detriment of consumers. Breach of the duty of care may have (serious) personal consequences for consumers’ health if those consumers do not receive the (timely) care for which they pay mandatory monthly healthcare premiums. In sum, it is high time the NZa takes action if breach of the duty of care is imminent. That is in the interest of consumers, on which the NZa must focus in performing its tasks.

What can healthcare providers do in the event of (imminent) breach of the duty of care?

The NZa’s principle based enforcement strategy is a fact that healthcare providers must take into account. It may be advisable to already contact the NZa and inform it of the state of affairs at a stage at which a healthcare insurer has not yet actually breached the duty of care, but at which that is foreseeable. The NZa would then have the information and opportunity it needs to implement its principle based supervision and to consult with the healthcare insurer in question in good time. If necessary, the NZa could then issue a warning or give instructions to the healthcare insurer involved. If the duty of care has already been breached, healthcare providers may request the NZa to take enforcement action against the insurer in question.

What can patients (and patients’ organisations) do in the event of (imminent) breach of the duty of care?

The NZa has devoted part of its website to patients who are faced with long waiting times and breach of the duty of care by a healthcare insurer. Patients can report waiting times that exceed the Treek standard to the NZa contact desk. The NZa website states that patients may also seek representation in the event of excessive waiting lists and breach of the duty of care by a healthcare insurer: “If you yourself are unable to contact your healthcare insurer or the NZa, a representative may do so on your behalf.” Patient’s organisations therefore have the option of combining several complaints and bringing them to the NZa’s attention.

What can the NZa do in the event of (imminent) breach of the duty of care?

In addition to effective and timely enforcement of the duty of care in the form of directions or administrative enforcement orders, the NZa may also send out a signal (in the media or otherwise), since it does the same in relation to healthcare providers. The NZa previously requested statutory powers to test healthcare insurers in relation to the Healthcare Governance Code. Be that as it may, it is remarkable that the NZa has not (yet) requested statutory powers to test healthcare insurers in relation to the Code of Conduct for Healthcare Insurers. The NZa has also not (yet) requested more effective means of penalising breaches of the duty of care by healthcare insurers (such as the ability to impose fines). In sum, if the NZa wishes to avoid the appearance of primarily focussing its attention and resources on enforcing compliance by healthcare providers, a great deal of work has yet to be done.

More information can be found at www.zorgcontractering.com.